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The opinion of the court was delivered by
Porter, J.:
The appellee recovered judgment for the value of an express package which was lost under the following circumstances: On the 19th day .of April, 1908, the appellee deposited with the express company at Belle Plaine, Kan., for shipment to Argonia, Kan., a package consisting of a canvas-covered telescope containing moving-picture films. The package weighed fifty-five pounds and was valued at $600, the value being marked on the outside in plain figures. The package was received at Argonia on the following day. The appellee failed to call for it and the agent of the express company placed the package in its office, which was located in the depot of the Missouri Pacific Railway Company. Argonia is a town of about five hundred inhabitants; the depot was a frame building, constructed as such depots usually are in villages of that size, and consisted of three rooms, the freight room, the waiting room, and an office. The doors and windows were fitted with locks and fastenings, and the windows, in addition to the clamp hooks, were fastened by nails driven into the casing. The agent left the package in the inner room, or office. During the night of April 21 the depot was burglarized by some unknown person breaking the' glass of one of the windows and effecting an entrance to the room where the package was left, and the package with its contents was stolen and carried away. The depot was located about five blocks from the main part of town, and no special watchman or police protection had ever been provided for it. It had been used for years for depositing freight and express matter, and United States mail received on late trains was left in the depot over night by direction of the United States post-office department. The jury returned a verdict in favor of the appellee in the sum of $600. The express company appeals.
The principal claim is that the court erred in refusing to set aside the verdict on the ground that it was not sustained by sufficient evidence and is contrary to law. It is argued that but one reasonable inference can be drawn from the undisputed facts, and that therefore the question of negligence is one for the court. It is conceded by both sides that the relation of the appellant was that of a warehouseman, and its obligation was only to exercise ordinary care. The appellant’s argument is that since the loss was the result of the burglary of a building, shown to be of the same kind and character as those used for depots by railroads and express companies in towns of the same size, and in which it was the practice of both railroads and express companies to leave their freight and express matter over-night, therefore, as a matter of law, it conclusively appears that the company exercised ordinary care.
It is a general rule in such cases that the degree of diligence or care required is a question of law for the court; but whether the bailee has exercised due care is a question for the jury, except in cases where but one ■reasonable inference can be drawn from the undisputed facts.
“It is for the court to determine the degree of diligence and care in the relation of bailor and bailee; but it is for the jury to determine under proper instructions whether the bailee has exercised due care.” (5 Cyc. 220.)
What is due care must as a rule depend upon the circumstances of each case. For instance, greater care is required of express companies than of ordinary carriers, on account of the greater value of the goods usually shipped by express, and the same acts or omissions which might not be regarded as negligence in a railroad company might be considered negligence in an express company, where both are acting as ware-housemen. (6 Cyc. 460, and cases cited.) A situation might be suggested where, under the undisputed facts, it would be the duty of the court to declare as a matter of law that due care had or had not been exercised. If, for instance, the transaction involved a sack of potatoes which it appeared the warehouseman had placed in an ordinary warehouse, the doors and windows of which were kept locked, a court might declare as a matter of law that ordinary care had been exercised. If, on the other hand, the property consisted of valuable jewelry or something of rare value which could be easily taken and readily disposed of or concealed, and which the warehouseman had left lying exposed in an ordinary warehouse, so situated that danger from burglars and thieves was apparent, the court might declare upon the facts that ordinary care had not been exercised; but we would regard these as exceptions to the general rule. The value of the property, the size and weight of the package and the liability of the place to be entered by thieves and burglars would all be circumstances to be taken into consideration by the jury in determining whether ordinary care had been exercised. The appellant cites the case of Hutchinson v. Express Co., 68 W. Va. 128, where the facts were very similar to those in this case, and where the syllabus reads:
“The fact that a building in which a warehouseman stores goods is not burglar-proof is not evidence of negligence on his part, in an action against him for their loss by theft.
“Leaving an express package in the freight room of a railway station, at which the express office is maintained, instead o'f in a room thereof in which such packages are usually placed, neither continues or extends liability as carrier, nor amounts to negligence as warehouseman.” (Syl. ¶¶ 10, 11.)
The express package in that case consisted of pelts which were to be manufactured into furs; its value was $128. There is nothing stated in the opinion as to the size of the package. Upon the facts the case seems to have been rightly decided, but the rule declared in the syllabus is stated too broadly. Whether ordinary care was exercised would depend largely upon the circumstances, such as the value of the package, its weight and size, and whether its value could be easily ascertained; and many other circumstances might alter the rule, such as the difficulty of concealing or disposing of it by a person stealing it. If it were a piano or an iron safe, or something not easily taken or carried away, the fact that its value was $600 would not be important. But if that were its value, and it was a small package, easily carried away and concealed, it is obvious that the warehouseman would not be exercising ordinary care to leave it over night in the same place that a piano might be safely left. Thus, in Hatchett & Bro. v. Gibson, 18 Ala. 587, it was said:
“A man will not be expected to take the same care of a bag of oats as of a bag of dollars; of a bale of cotton as of a box of diamonds or other jewelry; of a load of wood as of a box of rare paintings.” (p. 601.)
In the present case we can not say as a matter of law, on the undisputed testimony, that the express company exercised ordinary care. The package weighed fifty-five pounds and was about the size of an ordinary valise. Its value, $600, was marked on the outside, was known to the agent of the company, and could have been easily discovered by loiterers about the depot. From the evidence it appears that it was not difficult for any person to break the glass in the window, raise the sash and enter the room where the package was left. Whether persons in the exercise of ordinary care would have left it there over night, in a building which could be easily entered by burglars and which the evidence shows had been burglarized at least once before, to the knowledge of the express agent, was, under all the circumstances, a question for the jury.
It was also for the jury to determine whether the negligence of the company was the proximate cause of the loss. It was the proximate cause if the loss by burglary was the natural and probable consequence of the failure of the company to exercise ordinary care— that is,, if it might have been foreseen by ordinary forecast. (Railway Co. v. Parry, 67 Kan. 515.) Besides, the finding that the company was negligent necessarily involved a finding that the loss was something which a person in the exercise of ordinary care would have foreseen, and therefore was a finding that the negligence was the proximate cause of the loss.
' The appellee was a competent witness to state his opinion of the value of the contents of the package. He had dealt in moving-picture films, was acquainted with the catalogue prices, and had purchased these particular films from the manufacturer. ■
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
A survey was had under the statute for the purpose of locating the center of a section. The surveyor decided that a stone monument which he discovered should be regarded as marking such corner, on the theory that it had been set for that purpose in the course of an earlier survey, although it was in fact twenty-two feet west of the true or mathematical cen ter. John Haughton and others appealed from the surveyor’s report. Upon a trial in the district court it was affirmed. Later Haughton and those having interests in common with him filed a petition for a new trial on the ground of. newly discovered evidence. A demurrer to their petition was sustained and they appeal.
The appellees seek to justify the ruling of the trial court upon two grounds: (1) That the newly discovered evidence was merely cumulative; and .(2) that the new evidence if received would not with reasonable certainty change the result. We do not think the question of the probable effect of the new evidence, where it is material and competent and not cumulative, is one to be determined upon a demurrer to the petition. Whether or not it is cumulative, however, may well be decided in that manner, and such a decision is open to-review on appeal.
“No discretion is reposed in the court in determining whether or not evidence is cumulative. It is a bare legal proposition, which has been a fruitful subject of discussion in the courts for many years.” (The Town of Manson v. Ware, 63 Iowa, 345, 349.)
In Hart v. Brainerd, Exr., et al., 68 Conn. 50, a ruling sustaining a demurrer to a petition for a new trial was placed in part upon the ground that the new evidence was not likely to induce a different result, but, as the evidence was held to be purely cumulative, what was said on the other aspect of the matter was obviously dictum. We do not mean that it is reversible error for a trial judge to refuse to take testimony upon such a petition, where the new evidence in its most favorable aspect could not reasonably "be expected to change the result. If that appeared to be the force of the decision here appealed from we should examine more fully into the probable effect of the new evidence. But inasmuch as the evidence offered was plainly of considerable importance, and its force depended upon the relative weight to be given to conflicting testimony, we conclude that in sustaining the demurrer the trial court meant to be understood as holding that the new evidence was • unavailing because it was cumulative to that already heard.
At the trial the successful parties introduced, witnesses who testified to personal knowledge that the stone adopted by the later surveyor was in fact the one set by the earlier surveyor, and that it occupied its original position. The losing parties produced no witness who professed to have seen the stone that was set by the first surveyor. They relied on the fact that the notes of the earlier survey described the stone as being differently marked and of different dimensions from that discovered by the later surveyor, and upon evidence that at certain times between the two surveys no stone at all was to be seen at the place where it was afterward found. The newly discovered evidence offered was that of witnesses who had seen the stone placed by the first surveyor and were able to say from personal knowledge that it corresponded in size and marks with the records of the first survey, and riot with the stone subsequently found, and that it was located practically at the true or mathematical center of the section, and not where the new survey established the corner.
This proffered evidence was not cumulative to that afforded by the notes of the first survey, because while it was to the same point and effect it was not of the same kind. The personal testimony of a witness whose observation and memory may be tested by cross-examination is not of the same character as the entry in a record. It might be more convincing or less, according to circumstances, but it is not evidence of the same kind in the sense in which the term is used in defining the test of cumulative evidence.
The proffered evidence was of precisely the same character, and bore upon precisely the same point, as some that was introduced at the trial by the successful parties, but it was not cumulative thereto, because it was to the contrary effect. It was not corroborative of the evidence of the prevailing parties, but contradictory. Of course a losing party may not demand a new trial because he has discovered a way in which to contradict his own witnesses. (29 Cyc. 899, note 52.) But if he has been defeated by reason of evidence offered by the adverse party which he has been unable to meet, and afterward discovers witnesses who are able to contradict those of his adversary, his new evidence may not be rejected as cumulative, notwithstanding evidence of the same sort, directed to the same question, was given at the trial. (The State v. Tyson, 56 Kan. 686; 29 Cyc. 909, note 82; 29 Cyc. 920, note 8; 3 Encyc. of Ev. 924.)
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Porter, J.:
The, first contention is that the contract is void under the statute of frauds, because the Missouri land is not more definitely described in the memorandum. The language of the contract is as follows: “J. C. Keepers agrees to deed or cause to deed his 114 a. in Vernon county, Missouri, subject to encumbrance of $2500 and accrued interest.” The appellants rely upon the case of Hampe v. Sage, 82 Kan. 728, where the land was described as “seven hundred and sixty acres located in Pottawatomie county, Oklahoma” (p. 729), and a petition declaring upon a contract for the conveyance of land thus described was held demurrable. The two cases are quite dissimilar. The memorandum there contained no statement that the land was owned by the vendor. Here the memorandum in substance describes the land as 114 acres in Vernon county, Missouri, belonging to J. C. Keepers. In Hampe v. Sage the familiar principle is recognized that parol evidence is admissible to apply the description, but not to supply it; but the doctrine is likewise recognized that a very indefinite description will be held sufficient if it states that the land belongs to one of the parties and it is shown from outside evidence that such party owns but one tract of this kind or character, citing Bacon v. Leslie, 50 Kan. 494; White v. Breen, 106 Ala. 159; Hurley & another v. Brown, 98 Mass. 545; and 20 Cyc. 271. (See, also, Hollis v. Burgess, 37 Kan. 487.)
For another reason the appellants’ contention must fail. A defective description of land in a contract of this kind may be cured by putting the purchaser in possession; that is, the parties may by their own conduct under the contract render certain what might otherwise be deemed uncertain. (Brown v. Ward, 110 Iowa, 123; Work v. Welsh, 160 Ill. 468; The Ottumwa, Cedar Falls & St. Paul R’y Co. v. McWilliams et al., 71 Iowa, 164; Engle v. White, 104 Mich. 15; 36 Cyc. 595, and cases cited in note.) The finding of the court, which appears to be sustained by the evidence, is that the appellee placed the appellants in possession of the land in Missouri within a few days after the contract was entered into, and they continued in the possession thereof until this action was brought. They disposed of a team of horses and other personal property included in the contract, received the owner’s share of the crops raised on the land, and did all of these things after they knew that the legal title to the land stood in the name of Florence N. Briggs, and also aftér they knew that there were certain apparent defects in the title of the appellee -which required attention.
We think the evidence warranted the finding of the court that there was no fraud or misrepresentation on the part of the appellee concerning any matter which induced the making of the contract. The particular fraud relied upon in the cross-petition is that the appellee represented himself to be the owner of the Missouri land when in fact the legal title stood in Florence N. Briggs, and that there were liens upon the land in addition to the trust deed mentioned in the contract. He was, however, as the court found, the equitable owner, and it made no difference to the appellants where the legal title stood at the time the contract was made, because the contract provides that the appellee will either deed or cause to be deeded the land to the appellants.
Nor can the appellants justify their refusal to perform their contract because there was a small lien upon the land which was not mentioned in the contract. The court’s decree protects them by providing for the satisfaction of this lien. The encumbrance being discharged out of the purchase money, the appellants have no cause to complain. (Guild v. Railroad Co., 57 Kan. 70; 36 Cyc. 739.)
In fact, the appellants’ conduct in taking and retaining possession of the land after they knew the condition of the title is an answer to all the objections which they make to the performance of the contract. It is claimed that there was a shortage in the land. In the opinion of the trial court there was no shortage shown by the evidence. The appellants claimed, however, a deficiency of two and a half acres, which the court held to be inconsiderable compared with the number of acres contracted for, but in the decree protected the appellants by abating the purchase price in the sum of $125 as full compensation for the alleged deficiency. The action of the court in this respect was in accordance with firmly established principles of equity. Where, in actions of this character, the title proves defective to an inconsiderable part the court will decree specific performance with a ratable deduction of the purchase money by way of compensation. (Maupin Mark. Tit. Real Estate, 2d ed., § 325; 36 Cyc. 738, and cases cited in note 66.)
The contract entered into between the parties makes no provision for the furnishing of an abstract of title, nor does it provide that the appellee shall furnish a good record title. In such cases it has been frequently held that the vendee may be compelled to accept a title depending upon adverse possession, when free from doubt. (Tewksbury v. Howard et al., 138 Ind. 103, 110; Stevenson et al. v. Polk et al., 71 Iowa, 278; Conley v. Finn, 171 Mass. 70; 36 Cyc. 641.)
There are some objections to the manner in which the appellee’s title to the land was established by the proof, but in view of the real issues raised by the pleadings and the theory upon which the cáse was tried these are not regarded as affecting the substantial rights of the parties.
The judgment is affirmed. | [
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The opinion of the court was delivered by
PORTER, J.:
This is an action to set aside a guardian’s deed. It was originally brought by Z. S. Weed-man, as guardian of Sarah C. Swiney, a person of unsound mind. The defendant had judgment. Thereafter Sarah C. Swiney died and the action was revived in the name of Catharine Weedman, her only heir at law, who appeals.
W. L. Swiney died’ November 17, 1905, intestate, his only heir being his widow, Sarah C. Swiney. For some time prior to his death he was in partnership with the defendant, Fowler, in the grain, coal and livestock business, and was also possessed of property which he owned individually. The probate court of Kingman county appointed G. L. Baker administrator of the estate, and about the same time the defendant,. Fowler, filed his bond as surviving partner and proceeded to administer the partnership estate. Thereafter, in February, 1906, Sarah C. Swiney was adjudged insane, and the probate court of Sedgwick county appointed her brother, Z. S. Weedman, her guardian.
The petition alleged • that the defendant had made false representations to the administrator and to the plaintiff, as guardian, claiming to be the owner of an. undivided one-half interest in certain real estate which, stood in the name of W. L. Swiney at the time of his death, when, in fact, the defendant had no interest therein; that the statements were made for the purpose of defrauding the estate and of cheating the-widow out of her interest therein; that the administrator believed the statements and entered into an agreement with the defendant to procure from the plaintiff a guardian’s deed for the real estate; that the plaintiff, relying upon the truth of the statements, filed his petition in the probate court of Sedgwick county for leave to sell his ward’s interest in the real estate, and that an order of sale was issued, in pursuance of' which he had conveyed the same by guardian’s deed to the defendant. The petition then alleged that the order of sale was void by reason of the false representations-made by the defendant and relied upon by the plaintiff ; that there was no consideration actually paid for the deed; that the consideration of $1500 named therein was placed there without the knowledge or consent of the-plaintiff, and for the purpose of showing compliance with the law requiring the.sale to bring-three-fourths of the appraised value. A copy of the guardian’s deed was attached to the petition, and there was a prayer that the deed be set aside.
The answer pleaded a former adjudication, and' alleged that all the matters and differences between, the parties had been finally determined in an action. brought by the defendant as plaintiff in the district court of Kingman county against G. L. Baker, as administrator, and the plaintiff, as guardian, to quiet the defendant’s title to the real estate described in the guardian’s deed, in which action he had recovered a judgment which was in full force and effect. The answer further alleged that the consideration paid by Fowler for the guardian’s deed was a conveyance by him of an undivided one-half interest in the other property which stood in the name of Swiney at the time of his death, and which in fact belonged to the firm, and the payment by the defendant of debts of Swiney & Fowler to the amount of $3000. It was further alleged that the plaintiff, as guardian, had reported his proceedings to the probate court of Sedgwick county, by which the deed was confirmed, and that the decree of confirmation had never been set aside or appealed from. The answer also pleaded the two-year statute of limitation.
The reply was a general denial, and the averment that in the suit to quiet title no judgment was in fact iaken against Sarah C. Swiney, but on the contrary that the district court of Kingman county had dismissed the action as to her because there was no service upon her.
On the trial it was stipulated that the pleadings and the record in the action to quiet title should be considered in evidence for every purpose. The court ruled that under the pleadings and stipulations the plaintiff was not entitled to recover,- and held that the judgment quieting title furnished a complete defense to the action. This ruling is the error complained of.
In the action to quiet title Baker, as administrator, Weedman, as guardian of Sarah C. Swiney, and Sarah C. Swiney herself were made defendants. There was personal service of summons on the administrator and the guardian, but no service on the insane person. The journal entry of judgment recites that the cause was dismissed, as to her because there was no service upon her personally, but judgment was rendered by default against the other defendants. It is claimed that by reason of the dismissal as to Sarah C. Swiney the judgment against her guardian has no binding effect upon her estate. There is no merit in the claim, because the statute expressly provides that the process shall be served on the guardian. (Laws 1907, ch. 247, § 25, Gen. Stat. 1909, § 4843.) She was not a proper or necessary party, and the action as to her was rightly dismissed. As was said in Marquis v. Wiren, 74 Kan. 775: “There is but one way for a court to obtain jurisdiction of an insane person and that is by having the process served on his guardian.” (p. 777.) To the same effect is Foran v. Healy, 73 Kan. 633.
The other contention is equally untenable. The plaintiff offered to prove a number of facts which it is insisted showed fraud in obtaining the judgment. All of them, with proper diligence, could have been interposed in the action in which the judgment was rendered and to which the plaintiff was a party. For this reason the law can now afford the plaintiff no relief. (Snow v. Mitchell, 37 Kan. 636; Boyd v. Huffaker, 40 Kan. 634; Larimer v. Knoyle, 43 Kan. 338, 351.) The only fraud that can be relied upon to avoid a judgment in a collateral attack is fraud which inheres in the judgment and which affects the jurisdiction. (Bleakley v. Barclay, 75 Kan. 462, and cases cited in the opinion.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
G. W. Carey was run over by a car of the Chicago, Rock Island & Pacific Railway Company, receiving fatal injuries. His wife recovered a judgment against the company, and it appeals.
Carey was employed by the defendant as a workman in a stone quarry two miles west of Dwight. A spur track twenty rods long ran from the main line in a southwesterly direction to the quarry, curving around an embankment which cut off a view of the main track east of the switch. The spur track was used exclusively for setting in empty cars to be loaded, and shifting loaded cars to the main line. The cars upon.it were handled only by one train, an eastbound daily freight, due about eleven o’clock in the morning. Usually the train would stop west of the spur, uncoupling the engine to do the necessary switching. Infrequently it would pass without stopping, in which case it would stop on its east-bound trip on the following morning and do the work. Very infrequently it would go through to Dwight and after an interval back up from there and take out the loaded cars and set in empty ones. On the day of the accident two crews of workmen were engaged in the quarry. That to which the deceased belonged were stripping or uncovering rock near the switch; their duties did not require them to be upon the track; they had nothing to do with loading or handling the cars; the other crew were quarrying and loading near the west end of the spur. The freight train referred to was about two hours late. It ran past the switch to Dwight, and later backed up to pick up some cars. Shortly before this a hard rain had set in. Four loaded cars were standing on the spur near the switch, close to, but not touching, each other. All of the crew to which the deceased belonged, except himself, took refuge in the third car from the switch. He, as found by the jury, took shelter under the fourth. The workmen of the other crew retired to a box car provided by the company, used as a tool house and office, situated near the end of the spur, but off the track. The train backed into the nearest of the cars with such force as to push them together and move the furthest, one about a car’s length. Carey was thereby run over and fatally injured. A special finding stated that the-negligence of the defendant consisted in not giving a. proper warning signal.
We conclude that the plaintiff can not recover because the evidence and findings do not disclose any actionable negligence of the defendant, but on the other hand do establish that the accident resulted from the want of ordinary care on the part of the deceased.
In the absence of a statute a railway company is not required to give warning of the approach of a train except where it has reason to anticipate that persons will be upon the track. (33 Cyc. 782.) Here the trainmen owed no such duty to Carey, inasmuch as they did not know of his presence and had no reason to suppose that any person would be under the cars. Liability for negligence can result only from the violation of a duty owed to the person injured. (See Express Co. v. Everest, 72 Kan. 517, 522, and cases there cited.) Shortly after the impact a brakeman saw one of the Workmen inside a car and heard the voices of others. The conductor also saw some men in the car about the same time. But if there was then time to give warning to these men, and the company was guilty of negligence toward them, its neglect in this regard did not extend to the decedent. In answer to the question whether any of the train crew knew that Carey was under the car the jury answered that the trainmen did not know Carey. The reasonable interpretation of the answer, in view of the question, is that it was intended to mean that the trainmen did not know that Carey was under the car. But in any event the effect must be the same, for there was no evidence that he was seen by any of the train crew.
Assuming, however, that the company may have been negligent, we think the conduct of the deceased was such as to prevent a recovery. The rule is generally if not universally accepted that for one unnecessarily to remain upon a railroad track is negligence as a matter of law; none the less so because customary warnings of the approach of a train may have been omitted. In getting under a car which had been loaded and only awaited the convenience of the company to be hauled away the deceased was clearly within this rule. The fact that in this instance the train that did the switching first ran on to Dwight and then backed np, instead of doing the work as usual, upon reaching the spur track from the west, does not affect the matter. At the most, such a departure from custom could have no greater effect than an omission to perform some positive duty, and would not render the defense of contributory negligence unavailable. (Dyerson v. Railroad Co., 74 Kan. 528, 533, 534.)
The contention is made that the evidence was sufficient to justify a finding that the company’s employees were guilty of misconduct amounting to wantonness in failing to give a warning of the approach of the train, since two of them knew that men were in or about the cars to be picked up. We do not think the fact that the trainmen saw a workman in one of the cars, and heard the voices of others, was sufficient to suggest to them the probability of anyone being under the cars, or in a similar position.
The judgment is reversed and the cause remanded, with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Benson, J.:
Nearly all of the objections to the tax which the plaintiffs seek to enjoin were urged in The State v. Pauley, 83 Kan. 456, and held to be insufficient. The contention in that case, however, that the high schools in Marshall county had not been established under the Barnes law, was disposed of by construing the agreed statement and pleadings as admitting that the schools had been so established. In this case the court found:
“That no new high schools were established in Saline county, Kansas, under the provisions of chapter 397 of the Laws of 1905, as originally passed or as subsequently amended, but that the existing high schools in the city of Salina and in school districts 82 and 22 were brought up to the required standard and made to conform to the provisions of said act, so far as districts 82 and 22 were concerned, in the summer of 1907.”
It is urged that this finding precludes the application of the act of 1909 (Laws 1909, ch. 210, § 1, Gen. Stat. 1909, § 7809) to these schools. That act, by its express terms, relates only to schools which have been established and maintained for one year under the provisions of the Barnes law (Laws 1905, ch. 397, Gen. Stat. 1909, § 7792 et seq.), as amended. It is contended that a school which was in existence when the Barnes law took effect is not established under that law — that to establish means to create, to found, or to institute. On the other hand the defendants’ contention is that to establish, as used in the statute, means to make stable; to confirm; to secure on a firm basis, as by recognition or favor. These definitions are taken from Webster’s dictionary, and merely show that the word may be used in different senses. Referring to the original Barnes act, it will be observed that existing schools could come under its operation if the conditions and courses of study therein were made to conform to its provisions, and no levy could be made until one or more such high schools had been maintained in the county the preceding school year. When these conditions were complied with the schools were entitled to recognition and support under the act, and in this sense were established under its provisions.' The act of 1909 was, as indicated in the Pauley case, swpra, adopted to make the provisions of the Barnes law ef•fective in the counties where a majority of those voting upon the proposition had voted for its adoption. The provision in the act of 1909 making the law applicable in counties where high schools had been established and maintained for one year under the Barnes law was in harmony with that law, and conferred the benefits of the later statutes upon schools existing, maintained and recognized as within the purview of the original act. The status of any high school by which it may come under the operation of the law is established when it is made to conform to the requirements of the Barnes law. If it has been so established and maintained for one year, it is within the operation of the act of 1909. Reported cases might be cited wherein the word “establish” has been held practically synonymous with create, while others have held the meaning of the word to be to confirm, or to ascertain and fix, or settle. (3 Words & Ph. Jud. Def. pp. 2469-2474; 16 Cyc. 591.) The particular sense in which the word is used must be determined by the context and the manifest intent and scope of the statute. In determining the import of this word in a statute of Alabama the supreme court of that state said:
“It is as often employed to signify the putting or fixing on a firm basis, of putting in a settled or an efficient state or condition, an existing legal organization or institution, as it is to found or set up such organization or institution; the one meaning is as little recondite, abstruse, or obscure as the other.” (The State ex rel. &c. v. Rogers et al., 107 Ala. 444, 453.)
The former judgment restraining the collection of the tax of 1908 is not an adjudication of the validity of the tax levied under authority of the act of 1909. (Shepherd v. Kansas City, 81 Kan. 369.)
The sufficiency of the title of the curative act of 1909, although not directly referred to in The State v. Pauley, 83 Kan. 456, was involved in the decision. It is “an act concerning high schools.” The precise matter treated in the body of the act is plainly indicated in the title. It is said that as the act relates to proceedings under the former statute it is retroactive, and that this feature is not suggested by the title. A like claim was made in Leavenworth v. Water Co., 69 Kan. 82, but was not sustained. . (Syl. ¶ 6.)
A vigorous and able argument is made in support of the claim that the Barnes law and the act of 1909 are both unconstitutional. The reasons urged in support of this contention were considered in Board of Education v. Allen County, 82 Kan. 782, and in The State v. Pauley, supra, and need not be reviewed. Adhering to the views expressed in the cases named, the judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The substantial controversy is over the question of delivery of the deeds made at Excelsior Springs, Mo. The plaintiff claimed under both deeds— the one made in Mr. Spilman’s office as well as the one made in Missouri. The court instructed that if the jury found that either had been delivered the plaintiff should recover but that if neither was delivered he should not recover. The jury found that the deed left at Mr. Spilman’s office was to he held by the custodian until “called for,” without finding whether it was to be so held until called for by the grantor or grantee. The plaintiff relies mainly upon the deed made at Excelsior Springs, and so the vital question is whether the finding that that deed was delivered is supported by the evidence. The court correctly stated to the jury what constitutes a delivery substantially as declared by this court. (Wuester v. Folin, 60 Kan. 334; Kelsa v. Graves, 64 Kan. 777; Doty v. Barker, 78 Kan. 636.) The general verdict for the plaintiff embraces a finding that the deed was so delivered since that was a material fact in issue. (Harmon v. Bowers, 78 Kan. 135.) If it was the intention that the deeds when finally executed and placed in the envelope were to take effect as present conveyances, then the jury were justified in finding that they were delivered. Words, or acts, or both, showing an intention on the part of the grantors that a deed shall be considered as completely executed and that the title shall at that time be conveyed from the grantor and immediately vested in the grantee are sufficient to show delivery. (Tucker v. Allen, 16 Kan. 312; Harmon v. Bowers, supra; Doty v. Barker, supra; Young v. McWilliams, 75 Kan. 243; Ruckman v. Ruckman, 32 N. J. Eq. 259.) The reservation of rents, or use of the land’, and the promise exacted from the children that they would not have the deeds recorded, thereby seeking to guard against trouble with purchasers concerning the rents, should the property be conveyed away, is an indication of an intention to pass the title. The agreement that the deeds should be deposited with Mr. Spilman until the death of the grantors indicated a purpose to further safeguard the interest so reserved. At least it was a question for the jury whether that was the purpose of such deposit, or whether it was the intention to make the delivery to the custodian a condition upon which the title should pass. The evidence tends to show that the grantors did not retain any control over the deeds. The grantors directed the justice of the peace, in the presence of all the parties, to transmit the deeds to Mr. Spilman, and the justice in turn passed this direction on to the notary. Had this direction been followed the delivery to Mr. Spilman would have been sufficient, and possession being given, the title would have vested at once subject only to the reservation of rents. (Bury v. Young, 98 Cal. 446; Nolan v. Otney, 75 Kan. 311.) Other authorities are cited in notes appended to the report of the case last cited in 9 L. R. A., n. s., 317, and in 54 L. R. A. 865. No good reason is suggested why the same result would not follow notwithstanding the failure to transmit the instruments as directed if it was the intention that title should pass immediately, and the subsequent disposition or deposit was provided for merely to safeguard the interests of the parties. It was said in Ruckman v. Ruckman, 32 N. J. Eq. 259:
“Delivery may be effected by words without acts, or by acts without words, or by both acts and words. Whenever it appears that the contract or arrangement between the parties has been so far executed or completed that they must have understood that the grantor had devested himself of title, and that the grantee was invested with it, delivery will be' considered complete, though the instrument itself still remains in the hands of the grantor.” (p. 261.)
(See, also, Ledgerwood v. Gault, 70 Tenn. 643; Standiford v. Standiford, 97 Mo. 231; Douglas et al. v. West, 140 Ill. 455.)
It was for the jury to determine whether it was the intention that the title should pass when the actual deposit of the deeds should be made with Mr. Spilman, or whether it was intended that it should pass pres ently notwithstanding the further agreement for transmission and deposit. This was a question of fact, and the finding of the jury upon the evidence, which is found sufficient to sustain it, can not be disturbed.
The opinion in Worth v. Butler, 83 Kan. 513, is cited as being opposed to these views, but in that case the delivéry depended upon undisputed facts, showing that no delivery had been made and leaving no room for any legitimate inference to the contrary — a situation entirely different from the one now under consideration.
The defendants requested several instructions relative to the Excelsior Springs deeds. So far as these requests embodied correct principles they were sufficiently embraced in the general charge of the court, which clearly stated the rules of law necessary for the information of the jury. Most of the instructions requested, however, declared in effect that the deeds were inoperative for want of delivery. But delivery, as already stated, was a question of fact for the jury.
Objection was made to the oral testimony relative to the proposed plan for division of the land, afterward consummated by the deeds. This evidence was properly received to show the intention of the parties and as part of the history of the transaction. Even if erroneously received, no prejudice resulted. Without separately discussing each of the assignments of error it is held that the petition stated a good cause of action; that the evidence was sufficient to sustain the verdict and special findings; and that no prejudicial error is shown.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The appellee sued the railway company for damages claimed to have been caused by the permanent obstruction of ingress and egress to her property on Mosley avenue in the city of Wichita. The property fronts west on the avenue, over which several tracks had been laid, and when the appellant added its last track the ingress and egress were practically destroyed. Evidence was introduced to the effect that for many years the rear of the half lot in question had been left open so that people could drive thereover, but no alley was ever platted or formally dedicated, the open space being a mere permissive neighborhood matter.
A verdict was returned by the jury in favor of the appellee, and the appellant claims that the trial court erred in permitting the appellee to fix the market value of the property for residence purposes instead of more valuable business purposes; in refusing to permit appellant to show upon cross-examination the nature and character of the surrounding property; that the verdict is not supported by the evidence; and that the instructions were erroneous for failure to give sufficient •consideration to tracks previously built by others than the appellant, for special reference to a certain plat offered in evidence, and for ignoring the value of the property for business purposes.
The argument in favor of the first complaint is based upon the following question:
“State, if you know, what was the fair and reasonable market value in the city of Wichita of the west half of lot 2, block 5, in English’s Fourth addition to the city of Wichita, owned and occupied by Susan Wichman as a home during the month of June, 1908, prior to the construction of this switch or spur.”
It is claimed that the words “owned and occupied by Susan Wichman as a home” confine the question to the value of the property as a home, but the language does not bear this construction. The words last quoted simply amount to a description of the property, and not to a basis of value, and the question of value for business purposes was fully covered by the evidence and also by the instructions.
A careful examination of the record shows that the character and surroundings of the property in question were fairly presented to the jury, and that the limit placed upon the cross-examination in this respect was the exercise of sound discretion by the trial court.
There was testimony that the difference in value of the property before and after the injury was from one thousand to two thousand dollars, and the verdict of the jury for nine hundred dollars was abundantly supported.
The testimony was clear that until the last track was put down by the appellant there was room for fair ingress and egress, and hence the trial court did not err in charging the jury that the presence of other tracks on Mosley avenue was immaterial.
It is urged that the court erred in charging the jury that as the plat offered in evidence showed no alley the burden of proof was on the appellant to show that one existed. It is claimed that this was a singling out of one particular item of evidence in violation of the rule announced in Gross v. Shaffer, 29 Kan. 442, and Haines v. Goodlander, 73 Kan. 183. In the former it Was held that when the evidence tends to show authority by words and acts it is generally misleading and erroneous for the court to select a few of the words only and instruct that these alone do not show authority. In the latter the sixth paragraph of the syllabus is as follows :
“The court should be careful not to mislead the jury by singling out and giving undue prominence to a particular fact in the case, nor by unduly emphasizing the contentions of either party, but it is often necessary and proper for the court to speak of important features in the evidence, and advise thé jury as to the rules of law applicable to such facts.”
We do not perceive that the instruction in any way or in any degree violates the rule referred to. It was doubtless for the appellant to show by a preponderance of evidence that an unplatted alley existed in the rear of the premises, if such matter were material, and in merely announcing that this burden was upon the appellant the court correctly stated the law.
It was urged in the argument that although the property was more valuable for business than for residence purposes the court in its Instructions restricted its valuation to the latter, and thereby permitted the jury to estimate the damage upon a wrong basis. But in one of the instructions the jury were told:
“In determining such market value you will consider what plaintiff’s property was worth immediately before, the construction of said track and what it was worth immediately after the construction of said track for the purpose for which it could most advantageously be used.”
As the evidence went to the value of the property, both for residence and business purposes^ this instruction was not only proper but fair to the appellant.
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The opinion of the court was delivered by
West, J.:
The appellee alleged that on January 24, 1909, in attempting to alight from one of appellant’s cars, she. was injured by being thrown-therefrom, in consequence of the car being negligently brought to a sudden stop. She was about twenty-three years of age; was earning eight dollars a week as stenographer, and never had treatment from a doctor for anything, nor had anything the matter with her that she knew of before the accident. Soon after the accident she was taken to a hospital, where a median-line incision was made in the abdomen, the right ovary and the appendix were removed, and the left ovary was resected, i. e., a piece removed and a piece left. A hemorrhage in the right ovary was discovered, the appendix was slightly congested, and the left ovary was encysted. She was at the hospital three weeks; had pain and suffering after the operation; and testified that she had been in a very nervous state and unable to. work except a short time — that she would then break down. She testified that she could not stand being on her feet any length of time; that she suffered a great deal across her abdomen and was compelled almost every week to go to bed a day or two; was continually in a nervous state; had always to be careful in getting home ahead of the crowd on the car, so that she could get a seat; would faint if she stood up; that she was unwell every other week, each period accompanied by pain; had not been able to work except a short time, then she would break down; that she had tried bookkeeping and broke down under the nervous strain and had to go to the country; that she is now receiving five dollars a week and board and room for taking care of a little boy in a private family. The surgeon testified, among other things, that a cystic condition of the ovaries occurs frequently without any accident, and that he would not attribute it in this case to the accident, but that the hemorrhage seldom follows anything except some force or violence. The jury returned a verdict for $10,933. The railway company appeals, and claims that its liability was not established by the evidence; that the verdict was ex cessive; that the instructions were erroneous, in that those numbered 7 and 10 invaded the province .of the jury, and departed from the theory of the amended petition.
The case was tried by the appellant on the theory that the appellee was not injured in alighting from the car, but, if at all, by falling, some distance from the place of alighting. But there was sufficient evidence to show that the appellee’s theory was correct, and the jury were amply justified in so finding. While the answer was only a general denial, the appellant claims that even on the testimony in behalf of the appellee she contributed to the injury by her own negligence, or at least that such evidence left the matter in such condition that the jury should have considered it, and that instruction No. 7 practically precluded such consideration. This instruction was that if, when the plaintiff "reached a point near her destination, she signalled to the conductor to stop such car at Eleventh street, where she desired to alight, and that the conductor gave the usual signal to the motorman to stop said car, and thereupon the speed of said car was reduced, and when near said Eleventh street, and before said car had come to a full stop, the gates of said car were opened by the said motorman, and the plaintiff proceeded to the rear platform, and stepped one foot upon the step of said car for the purpose of alighting therefrom, and that at the time the plaintiff had arrived at the step of said car the motorman in charge thereof brought such car to a sudden and violent stop, thereby causing the plaintiff to be thrown with great force and violence to the street, causing the injuries complained of, then the defendant will be liable and your verdict must be for the plaintiff.”
Counsel for the appellant argue that this disposes of the question of contributory negligence adversely to the railway company, for the reason that it tells the jury they must find for the plaintiff if the sudden stop threw her violently to the street and injured her, notwithstanding the fact that she had begun to alight and had placed one foot upon the step while the car was in motion, and that this fact should have been submitted to the jury, so that they, and not the court, might say whether „such attempt to alight from a moving car constituted contributory negligence. While this instruction, if taken alone, might be obnoxious to some criticism, still it was given in a case in which the derfense consisted in the claim that no injury at all had occurred until the plaintiff was safely away from the car, and to her petition on which this instruction was based no plea of contributory negligence had been interposed. The ninth instruction plainly told the jury that it was the duty of the plaintiff to exercise ordinary care and prudence to avoid being injured, that it was her duty to remain on the car until it had stopped, and that if she attempted to alight while it was in motion or assumed a dangerous position knowing that the car had not been brought to a stop and was liable to jerk or lurch under the ordinary methods of stopping, and by such negligence she was injured, without any fault or negligence upon the part of the defendant, she could not recover. The clause “without any fault or negligence upon the part of the defendant” is severely criticized by the appellant as equivalent to an instruction that the negligence of the plaintiff would not defeat her recovery unless the accident was caused solely by her conduct, and without any fault or negligence of the defendant. Of course this expression should not have been used, and had the pleadings and the theory of the defense been different its use, might compel a reversal. But it seems to have escaped observation, doubtless for the very reason that the matter of the plaintiff’s contributory negligence was not much considered in the trial of the real question — whether the .alleged injury had or had not occurred in fact. It is true, as decided in Burns v. Railway Co., 66 Kan. 188, and cases there cited, that a defendant may avail itself ■of contributory negligence if shown by the plaintiff’s ■own testimony, for the reason that the law does permit .a plaintiff to recover from another for injuries attributable to the fault of the plaintiff himself, whether such fault be shown by the plaintiff or by the defendant. But this defense can doubtless be waived, either expressly or impliedly, by stipulation or by conduct; and the record indicates so clearly that the appellant, in the effort to dispute the alleged accident and to refer the alleged injury to a subsequent occurrence after the appellee had left the car, so practically or so nearly waived the matter of contributory negligence respecting the alleged fall from the car that the error in the use of the expression referred to is not material. ■Counsel for the.appellant in their brief say:'
“The defendant denied that the plaintiff received any injury whilst on or in getting off the car, or in -consequence of any movement of the car, and contended that she fell upon the street after she had safely alighted and had taken two or three steps from the ■car.”
And in the reply brief:
“The defendant relied from first to last for its defense upon the proposition that it was guiltless of the act charged against it, namely, the-sudden stopping of the car with a violent jerk which threw the plaintiff to the street.”
That the verdict was large is beyond dispute. That it was so excessive as to show passion and' prejudice the appellant does not claim, and we are referred to no authorities for so holding. It is hard to measure the injury, and still harder to estimate it in dollars and cents, and in the absence of any showing of misconduct indicating passion or prejudice we must leave the matter as determined by the jury, who saw the appellee and heard her testify. (13 Cyc. 121; M. K. & T. Rld.. Co. v. Weaver, 16 Kan. 456; Reading . Township v. Telfer, 57 Kan. 798; James v. Hayes, 63 Kan. 133; Chanute v. Higgins, 65 Kan. 680; Railway Co. v. Frazier, 66 Kan. 422; Railway Co. v. Sledge, 68 Kan. 321.)
Complaint is made concerning the tenth instruction, for its alleged assumption of the theory of the petition, instead of the amended petition, and for its alleged enumeration of particulars declared to be negligent as a matter of law. The original petition charged that the car came to a full stop at Eleventh street, but was-running so rapidly that it went a few feet- past the usual stopping place; that when the car stopped the gates were opened and the appellee started to alight,, and while upon the second step, in the act of alighting, the car suddenly started forward, thus causing the-injury; that the appellant’s employees knew or should have known that the appellee was not given sufficient time to alight, and that they recklessly started the car suddenly, with great' force. The amended petition alleged that as it approached Eleventh street the car slowed down and the appellee, went to the- rear platform to alight; that the gates were improperly opened,, and as the plaintiff had her foot on the first step, preparing to alight, the motorman negligently brought the car to a sudden stop, thereby injuring the appellee; that the appellant’s employees knew. the night was dark and that the gates should not be opened before a full stop, and that they knew or should have known that the appellee had one foot upon the upper step, preparatory to alighting, when they brought the car to a sudden stop. In the tenth instruction the jury were told that it was the appellant’s duty under the circumstances “to stop such car for the purpose of allowing the plaintiff to alight therefrom, and not to open the gates thereon until such car had been brought to a full stop, and to keep it still for a sufficient time for the plaintiff to alight therefrom in safety, and not to start it forward suddenly while she was in the act of alighting. It was the duty of the agents and servants of the defendant in charge of such car to look and see and know that the gates of such car were not opened until such car was brought to a full stop, or, if such gates had been opened before such car was stopped, then to see that such car was not caused to give any sudden or violent jerk, so as to endanger the safety of any passenger while such passenger was in the act of alighting-after such gates had been opened, or allowing the car to move, if it had been stopped, before any passenger desiring to alight had an opportunity to do so. If they failed in these duties, or any of them, and the plaintiff was thereby injured, without fault on her part, the defendant was guilty of negligence ■ and is liable for such injury.”
It was shown by the testimony of former motormen on similar cars that it was not only the duty but the rule of the railway company to come to a full stop before opening the gates, and certainly it must be its duty, if the gates have been opened, to see that no sudden or violent jerk be given so as to endanger a passenger in the act of alighting. While the reference to a sudden starting forward was unnecessary and improper in view of the amended petition, still it was rendered harmless by the further expression that if the employees failed in. any of their duties, and the plaintiff was thereby injured, the company would be liable.
Miss Gladys Lichty testified:
“Ans. When we left Tenth street Miss Van Vrankin raised her hand to the conductor for him to give the signal for the car to stop at Eleventh, and he gave it, and she got up and walked in the back of the car, and the gates were opened before the car stopped, and the car began to slow down when we were almost to Eleventh street; and when the car was- almost to a stop, why, it gave a violent jerk.
“A. Well, I don’t know, except that it just gave a violent jerk; it made for the people inside of the car hard to sit on their seats.”
Miss Fay Lichty testified that the gates were opened before the car came to a stop.' She further said: “It seemed to me as though the car had come to a stop, when they gave a violent jerk, and, of course, it threw her, and it seemed as though it threw almost every one in the car out of their seats,” and that the car did not stop, start up again and make a second stop.
The appellee testified:
“The car was then slowing down, and as I stepped out on the platform — it was n’t a second — the car gave a sudden jerk, like that, and I threw out my arm to catch myself, but I was too slow, and I was on the ground and the conductor picked me up and began to ask me if I was badly injured and what my name was.”
We do not think, therefore, that instruction No. 10 was materially misleading or prejudicial to the appellant.
The day after the injury an agent of the appellant procured a statement of the affair from the appellee, who directed a friend to sign it for her, as her right shoulder had just been “thrown into place” and her right arm was “all bandaged up” and she was nearly wild with her “arm being put in place.” After she left the hospital she talked to her attorney. In this statement to the agent the injury is said to have occurred after the car had stopped and she had started to get off; that before she reached the lower step the car suddenly started forward and threw her off. It is seriously insisted that the change of front shown by the amended petition was not in good faith and was not made until certain depositions had been taken which admonished the appellee that in order to recover she must allege that a sudden stop, and not a sudden start, threw her from the car. However the injury in fact occurred, it was at night, and made the appellee so sick, as she tes tified, that she could not walk except in the middle of the road, and rendered her “frantic with pain”; and the next day, with her shoulder and arm suffering from sprain, it is not passing strange that she may have been mistaken in her statement as to just how the trouble started. Less strange is it if, after her hospital experience, she was still unable correctly to give her counsel the details of the occurrence which caused the injury.,, The difference between a sudden start and a sudden stop of the car is not so serious as to justify an imputation of bad faith because the injured person did not for a while correctly distinguish between them. The contention that such a thing as the sudden stop alleged in the amended petition is absurd if not impossible is met by the testimony of a former motorman, on the same kind of car, Mr. Wickstrom, who said:
“Sometimes a brake shoe will hang close to a wheel if the brake is not adjusted right, the shoe fits the edges of the wheel just right, it will jar and jerk when you stop the car; if the shoe is connected up like they should be you can stop the car easy without any jarring or jerk.”
Mr. Quisberry, who had served for four years as conductor and four years as motorman for the appellant’s road, and was acquainted with the “700” cars, such as the one under consideration, testified:
“Ques. Is there a jerking of the car sometimes when it is brought to a stop? [Objected to by defendant as incompetent, irrelevant and immaterial. Objection overruled; defendant excepts.] Ans. Sometimes they will unless you release the brake.
“Q. What caused that jerking, tell the jury? A. Well, it is the tightening of the brakes and- the releasing of the brakes when it comes to a stop; you should release the brake just about the time it comes to a stop to stop that jerking; if you do not, if your brake is set when the car stops, and you don’t release them, then comes a jerk, you see.”
Some reference is made to a “quotient verdict,” and it is suggested that the verdict bears facial evidence of having been reached by an arithmetical process. The record contains no evidence on this point, and the face of the verdict is not sufficiently forbidding to impeach its character. The cause has been presented with thoroughness and ability, and we have endeavored to give patient and careful heed to each complaint made by the appellant, but we do not find from the entire record, any material or substantial error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an action in replevin. The jury returned a verdict in favor of the appellant, who was the defendant. The court granted a new trial on the sole ground that the verdict was not sustained by sufficient evidence. This is the only error complained of. The motion for a new trial was filed under the provisions of the old code. At the time the motion was heard the amended code was in effect. The appellant makes the novel claim that the new code has taken away from the trial court the power to grant a new trial, on the ground that the verdict of the jury is not sustained by sufficient evidence. This was one of the grounds stated in the provisions of the old code. (Former Code, § 306, Gen. Stat. 1901, § 4754.) The language of the new code (Code 1909, § 305) is: “Fourth, that the verdict, report or decision is in whole or in part contrary to the evidence.” We are unable to discover any distinction between the two forms of expression. If a verdict is contrary to the evidence, it is not sustained by sufficient evidence. Both forms of expression mean when the weight of the evidence as a whole is not sufficient to justify the verdict.
The judgment granting a new trial is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The appellants sought to enjoin the mayor and council of Cherryvale, Kan., a city of the second class, from issuing bonds for an extension of its waterworks system. A restraining order was granted, and upon the hearing this was vacated and a temporary injunction refused. The principal contention is that in attempting to go more than five miles from the limits to procure a water supply the city was acting beyond its power. It is insisted that the five-mile limit fixed by the legislature in 1872 still controls.
An examination of the legislation relating to waterworks in cities of the second class shows that section 60 of chapter 100 of the Laws of 1872 (Gen. Stat. 1909, § 1405) authorize such cities to purchase or condemn and hold all lands necessary for waterworks with in five miles of the city limits. This act took effect March 13, 1872. The same legislature enacted chapter 208, which took effect March 6, 1872, and authorized cities of the second class to contract for and procure waterworks and to condemn and appropriate land necessary therefor “in or out of the corporate limits.” (Laws 1872, ch. 208, § 2.) This act provided for the issuance of bonds to defray the cost of such waterworks upon a majority vote cast at an election called by the council, twenty days’ notice having been given. Chapter 55 of the Laws of 1895 authorized cities of the second class to purchase, procure, provide, contract for and construct waterworks, light and gas plants, and to issue bonds therefor on a three-fifths petition and a two-thirds vote. Nothing in this act specified where such plants were to be located. Chapter 82 of the Laws of 1897 empowered cities of the first, second and third classes to contract with private corporations for light, power, water or heat, and to obtain the same by constructing, owning and operating light, heat or power plants, or waterworks, and to issue bonds therefor upon a two-fifths petition and a Majority vote— no restriction as to the location of any plant or waterworks. Chapter 136 of the Laws of 1903 authorized cities of the three classes to obtain heat, water, light and power, and to purchase, procure, provide and contract for the construction of and to construct and operate gas,' light, power and heating plants and waterworks, gas wells and oil wells, and to construct and maintain necessary pipe lines. These cities were granted full power to issue bonds upon a majority vote, no petition being required. Sections 1 to 8, inclusive, of chapter 82 of the Laws of 1897, also section 9 as amended by chapter 107 of the Laws of 1901, were repealed by chapter 136 of the Laws of 1903.' Chapter 101 of the'Laws of 1905 (Gen. Stat. 1909, §§ 744-747) ■provided that whenever a majority of the electors of a city of either class should vote in favor of issuing bonds for the purpose of purchasing, constructing or extending works for the purpose of supplying the inhabitants with natural gas, water, electric light or heating the mayor and council should issue bonds therefor. Chapter 93 of the Laws of 1909 (Gen. Stat. 1909, § 749) repealed sections 1 and 2 of chapter 136 of the Laws of 1903, and provided- that the mayor and council of any city of the second or third class might issue bonds for waterworks and other plants upon a vote of a majority of all the qualified electors.
It does not appear that the city was attempting to condemn land, but it is stated by counsel that a tract on the Verdigris river had been purchased and a right of way for a twelve-inch pipe line had been secured for six and one-fourth miles. It is claimed that full power thus to extend the waterworks system and to issue bonds therefor is found in sections 744 and 750 of the General Statutes of 1909. Section 744, so far as material here, is as follows:
“That whenever and as often as a majority of the electors voting at an election heretofore held, or hereafter called and held ... in any city of the . . . second . . . class, shall vote in favor of the issuance of bonds of such city for the purpose of . . . constructing or extending works for the purpose of supplying such city and its inhabitants with . . . water ... it shall be lawful for the mayor and the city council of said city, by ordinance duly passed, to direct the issuance of the bonds so voted.”
Section 750 (Laws 1903, ch. 136, § 3) authorizes any city of the second or third class “to purchase, procure, provide and contract for the construction of, and to construct and operate .' . . waterworks . . . and to secure by lease, contract or purchase natural-gas lands, petroleum-oil lands, and other real estate . . . and to construct and maintain pipe lines . . . for the purpose of supplying said city, its citizens and others with water, light, gas, power, fuel or heat for domestic use and all other purposes.” Section 751 (Laws 1903, ch. 136, § 4) grants full power to issue bonds upon a majority vote of the qualified electors, and we think these provisions furnish sufficient authority for the extension and for the issuance of the bonds, and that the five-mile limit found in the act of 1872 does not impair such authority. Repeated legislation since 1872 expressly authorizing cities to construct or extend waterworks is significant in its omission of geographical limits, and there is no rule of construction requiring us to hold that each subsequent act expressing the later will of the legislature must have read into it- the unexpressed intention to retain the limitation of the first enactment. The rule of pari materia applies to laws “enacted by the same legislature about the same time concerning the same subject matter” (In re Hall, Petitioner, 38 Kan. 670, syl. ¶ 1), and while the rule in a general way applies to all legislation on a given subject, it is less distinctly applicable when long periods of time are covered.
“Statutes relating to the same subject are to be construed together; but this rule does not go to the extent of controlling the language of subsequent statutes by any supposed policy of previous ones.” (Goodrich v. Russell, 42 N. Y. 177, 184.)
(See, also, Endlich, Inter. Stat. § 220; 2 Lewis’ Suth. Stat. Const., 2d ed., § 447; The State, ex rel., v. Studt, 31 Kan. 245; The State v. Menke, 56 Kan. 77; United States v. Claflin, 97 U. S. 546, 552; Norris v. Crocker, et al., 54 U. S. 429; Howard v. Hulbert, 63 Kan. 793.)
The election was called by ordinance, and the council declared by resolution that 534 electors voted for and 298 against the proposition to issue bonds with which to extend the waterworks system and build a pipe line to the Verdigris river, and it now appears that the bonds have been issued and sold.
Complaint is made that in passing a certain ordinance the council suspended the rules without unanimous consent, in violation of another ordinance. But the record fails to show the existence of such other ordinance, and the trial court refused to receive the evidence offered for the reason that there was nothing to show the existence of such ordinance. It is also claimed that the mayor and council have mismanaged the city’s affairs and have used undue haste and extravagance in the passage of ordinances and the sale of bonds. But their acts appear to have been warranted by a majority of 241 of the qualified electors, and matters of mere municipal policy are not for the courts to control.
Finding no error in the rulings of the trial court, the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
James M. Mason brought this suit against Skip D. Harlow to enjoin the prosecution of an action in the courts of Arkansas in which Harlow sought to recover against Mason damages for alleged libelous matter contained in certain letters. The court refused to grant a temporary restraining order, and sustained a demurrer to the petition. This court, in order to preserve the status, issued an order restraining the prosecution of the action in Arkansas pending the appeal from the decision of the district court.
The only question to be determined is whether the petition stated a cause of action. If it did, the court erred in refusing the restraining order and in sustaining the demurrer. The petition is lengthy, and contains a great deal of unnecessary verbiage and averments of evidentiary facts which have no place, in a pleading. Briefly, the facts stated are that Mason is a regular practicing attorney of the Wyandotte county bar. He brought a suit in the district court of that county for his client, Maggie Á. Hanke, against Harlow to set aside a deed from her conveying her homestead to J. H. Peterson, on the ground that Harlow had by fraudulent misrepresentations induced her to exchange her property for a worthless tract of land in Fulton county, Arkansas. The defendant served Mason with notice to take the depositions of a number of witnesses at Mammoth Springs, Ark. Mason corresponded with one Brittain, of Mammoth Springs, who claimed to be a lawyer, and retained him to represent the plaintiff in taking the depositions and in procuring evidence for other depositions on behalf of Mrs-. Hanke. Being unable to obtain any information from Brittain with regard to the depositions after they had been taken, and learning that they were being withheld, Mason went to Arkansas for the purpose of investigating the situation. While there he served notice to take other depositions at the same place on August 26, 1909. He was there solely as the attorney of his client, and not for any matter personal to himself, and was engaged in looking after her interests. While there Harlow sued him in the circuit court of Fulton county, Arkansas, for $25,000 damages for an alleged libel in a letter of instructions which he had written to Brittain, and caused Mason to be served with process on August-24, two days before the time set for taking depositions. The action was not brought in good faith, but for the purpose of preventing Mason from properly discharging his duties to his client, and was inspired solely by vindictive and malicious purposes. Mason owned no property in Arkansas, and there were no debts owing to him there. Harlow and Mason both resided in Wyandotte county, Kansas.
The demurrer admits the facts pleaded, and it is difficult to discover on what ground the court sustained the demurrer and refused the restraining order. The petition alleges that the action in Arkansas was not brought in good faith, but maliciously and 'for the pur-, pose of harassing the appellant and preventing him from properly attending to the business of his client in an action pending in court. On the same principle that the courts quite generally hold parties, witnesses and even attorneys privileged from the service of process while in attendance on courts and other judicial proceedings, public policy and the interests of justice alike require that courts shall protect litigants from the malicious prosecution in other jurisdictions of suits the purpose of which is to interfere with or prevent the due administration of justice.
Equity has power to restrain a party within its jurisdiction from prosecuting a suit in the courts of another state, and in a proper case will not hesitate to exercise the power. (Cole v. Young, 24 Kan. 435; Gordon v. Munn, 81 Kan. 537, 541, and cases cited; Pickett v. Ferguson, et al., 45 Ark. 177; Snook et al. v. Snetzer, 25 Ohio St. 516; Vail v. Knapp, 49 Barb. [N. Y. Supr. Ct.] 299; Keyser v. Rice, 47 Md. 203.) Courts will not enjoin a suit in another state merely on the ground of the convenience of parties, but will do so when the ends of justice require it. (Bank of B. Falls v. R. & B. R. Co. et als., 28 Vt. 470.) In Hawkins v. Ireland, 64 Minn. 339, it was held that an injunction would lie when necessary to enable justice to be done by the court and prevent one citizen from obtaining an inequitable advantage of another. In White, Stokes & Allen v. Caxton Book-binding Co., 10 N. Y. Civ. Pr. Rep. 146, it was held that courts will not enjoin the prosecution of an action already commenced in another state unless it was not brought in good faith, but in order to vex and harass the defendant. (To the same effect are Claflin & Co. v. Hamlin, 62 How. Pr. [N. Y.] 284; Dinsmore v. Neresheimer, 39 N. Y. Supr. Ct. 204; Dehon & others v. Foster & others, 86 Mass. 545.)
The power of the court in this instance to enjoin the appellee can not be doubted. (22 Cyc. 813.) Both parties are citizens of this state and subject to the jurisdiction of the court, and equity will enjoin the prosecution of a suit in another state whenever the circumstances make such restraint necessary to prevent one citizen from doing an inequitable thing, and especially when the action in the other state' has been brought maliciously and in order to vex and harass another citizen and to interfere with or prevent the free administration of justice in a suit pending here.
The petition stated a cause of action, and the judgment is reversed and the cause remanded, with directions to overrule the demurrer and grant the restraining order. | [
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The opinion of the court was delivered by
West, J.:
The parties hereto became acquainted at Pike’s Peak in October, 1899. They were married at Iola, Kan., October 5, 1904. The plaintiff was then about twenty-seven years of age, in fair health, and well educated. Her mother was a well-to-do widow, advanced in years, to whom she was greatly attached —her affection being fully reciprocated. The defendant lived at Baltimore, Md., where he was a railroad' ticket agent, and there the couple went to live. Though earning but a small salary the defendant when married was worth from $10,000 to $12,000, and is an energetic and successful business man, being at- the time of the trial worth from $18,000 to $20,000. The parties lived at Baltimore — plaintiff's mother living with them for some time — until June 21, 1907, when the wife came to Iola where this action was begun, November 17,1908. The court granted her a decree on the ground of extreme cruelty, and also awarded -her alimony.
The defendant attacks the findings as beyond and unsupported by the evidence and insists that extreme cruelty was not shown, and therefore the decree was unwarranted. The court made forty findings- of fact and we have carefully examined them as well as the evidence found in more than 100 pages of the abstract. The most serious findings are to the effect that upon the wedding trip the defendant manifested petulance and irritability, causing plaintiff distress of mind; that at the St. Louis exposition grounds the failure of some relatives to arrive at a certain time “greatly enraged defendant and by his temperament and demeanor and faultfinding had a tendency to greatly humiliate the plaintiff and destroy her happiness”; that on two different occasions he applied to her the opprobrious epithet of being a “kept woman”; that on several occasions he threatened to abandon her and once threatened to blow up the house, which so frightened her that she fled and sought shelter at the home of her mother-in-law; that plaintiff’s right lung becoming affected, he opposed her consulting a physician, intimating that she wanted to spend his hard-earned money needlessly; that early in 1907 he would upbraid her for keeping him awake'at night by her coughing, but refused to permit her to take another room when she expressed a desire to do so; “that on one occasion . . . the plaintiff, in order to avoid the faultfinding by defendant by reason of her coughing during the night, went to her mother’s room to remain there during the night and thus have rest for herself and not annoy defendant by her coughing; this greatly enraged defendant and he entered the room of plaintiff’s mother, where both the mother and the plaintiff had retired, and violently seized plaintiff and forcibly endeavored to carry her from the room”; that on or about the 21st day of June, 1907, plaintiff, being in a very enfeebled condition and •believing herself without sufficient medical attention, and because of the defendant’s gross insults and ill treatment, was compelled to leave him, and returned to her mother at Iola; and that since that time he has wholly neglected and refused to provide for her.
The petition alleged that plaintiff’s health became impaired and her right lung affected as the result, as she believed, of defendant’s “constant indignities and oppression” ; that at times he abused her outrageously by speaking to her harshly in a manner that would annoy and aggravate her and hurt her feelings; that in “one of his fits of abuse” he called her a “kept woman”; that upon several occasions he laid violent hands upon her; that he treated her like a slave instead of a wife by re-requiring her to meet him at the door on his return from the office and expecting her to relieve him of whatever he might be carrying, saying once in her presence, speaking of her: “I bought her and paid for her”; that by reason of his gross insults, ill treatment, complaints and neglect “she was compelled to leave the defendant and return to her old home in Iola on or about the 21st day of June, 1907.” Various other charges were embraced in the first cause of action, and the second alleged an abandonment of plaintiff by defendant on June 21, 1907, of which no proof whatever was offered. The 37th finding is as follows:
“I further find that all and singular the several matters and things in plaintiff’s petition averred of and concerning defendant are and were at the commencement of this suit true.”
Aside from this there is no finding or evidence of any assault unless it be on the occasion when plaintiff went to her mother’s room. The findings as well as the evidence disclose a number of petty and trivial matters too insignificant to deserve notice or to require attention. As to the matters of séeming importance -covered by the findings the evidence shows that the irritability at the St. Louis exposition was scarcely worthy of mention. The “kept woman” matter was simply and only this: The defendant desired a child, but plaintiff did not and asserted that should she have one it would be as ugly as defendant’s stone tobacco jar. He then referred to a remark once made to him by a chum that being married and having no children was too much like having a kept woman. There is no dispute that this remark of the chum was repeated and received in perfect good humor, though plaintiff testified that once afterward she referred to it and he said, “Yes you are,” to which she replied that he should not expect a kept woman to make a home and be a wife. The plaintiff did not testify to a single threat of abandonment, unless a threat to “leave the house” could be tortured into such a thing. The testimony shows that defendant had her consult different physicians, but that they did not find evidences of tuberculosis earlier than May, 1907, and there is no question that he provided for her liberally and maintained her in ease in a well-appointed house.
The bedroom episode is explained by the defendant in this wise: His wife had been sleeping, with her mother who objected to the- daughter sleeping with the husband, and finally plaintiff voluntarily told him she would sleep with him that night. They went to their room and disrobed, when plaintiff went down to bid her mother good night. After waiting for her to return until half past eleven, the defendant went down and rapped on the door and asked her to come, and the mother said: “Hold yourself and don’t you do it.”' Upon requesting a talk with his wife, who bade him open the door, he entered the room, when the wife arose, whereupon the mother rose in bed and said: “She will never leave this room this night.”
“I put my arm around my wife. At that moment her mother jumped out of bed and said she was going to call a police out of the front window, and Mrs. Rowe said to me, ‘Frank, you had better go on to bed' and let me stay here all night.’ I said, ‘If you positively will, all right, but you promised me you were coming up,’ and at this juncture Mrs. -got into a perfect rage. She said all manner of things against me. My wife burst out crying and screaming to an extent that the doorbell rang from the neighbors around. . It was a summer evening — I can not just recall the date at this minute — and her mother threw herself on the floor as if she had fainted or something. In the meantime Mrs. Rowe was in my arms. Mrs. Rowe said, ‘Frank, run and get a doctor quick, mamma is dying.’ I, in my bare feet,' with my gown on, rushed across the street to Doctor Miller’s and Dr. Miller was not at home. I came back and Sarah was at the head of the steps and she said, ‘Frank, did you get a doctor?’ I said, ‘No, the doctor is not at home.’ She said, ‘Phone Dr. Pierce Kintzing.’ I phoned for Dr. Kintzing. Dr. Kintzing came himself instanter. Mrs. Rowe at that time had recovered herself and the doctor examined Mrs.- and found her in a perfectly normal condition except temper. She asked the doctor whether she should take his medicine. She said, ‘You are a friend of Mr. Rowe and I believe it is poison.’ He said, ‘Madam, I am a professional man and I am here professionally.’ The doctor asked Mrs. Rowe if there was anything wrong with her mother, and she said ‘No.’ She said, ‘Frank, let us go in this middle room and sleep there to-night.’ I said, ‘No, I will go to my room and you stay with your mother.’ If that occasion Mrs. Rowe calls cruelty I deny it. It was the love of a husband to a wife and it was to carry her own wishes and desires that night too. Other acts of mine were absolutely on the basis of love and kindness to her, the same as this one was.”
The correctness of this version is in some respects corroborated by the wife and mother in their testimony and in others by many facts and circumstances otherwise shown.
The physician of the family, a neighbor woman and several girls who had been servants testified to the defendant’s kindness and apparent affection for his wife, one of the latter saying that he had no temper but needed some. Grace Robinson testified concerning one incident as follows:
“Ques. What took place then? Ans. Her mother came down in the dining room. She said, ‘Sarah, didn’t you promise me you were going to leave Frank?’ Mrs. Rowe says, ‘Well, mother, I am not going to break my home up,’ and then the old lady commenced to cry and went upstairs and had us to fan her, and a whole lot of stuff like that.”
It appears that once he did, in a fit of anger, say he would blow up the house, but he immediately cooled down and returned to his work, and from plaintiff’s description of him and his manner we can not believe she was greatly intimidated. His letters to her after her coming to Iola breathe a spirit of affection and sincere desire for her return, while hers repeatedly advise him of her determination to continue the separation. The plaintiff’s own testimony shows that she prepared to go and took down' pictures and arranged matters for some time before leaving on June 21, 1907. On the day she left she invited her husband to her room while she was dressing and there extended to him the extreme courtesies of a wife. At the depot she kissed him good-bye with tears in her eyes, and afterward wrote repeatedly, addressing him as “My dear Frank” and “My dear husband.” A note without address was found in her room indicating in a way her determination to separate from him, but he had provided her with round-trip transportation, which she accepted. The plaintiff’s mother, who had returned to Iola, wrote to plaintiff on March 12, 1907, referring to her Baltimore associations: “It only proves that 'water will seek its level and rise as high as its source,’ and you could no more be kept down in that .false society than I could. ... I am surprised that you would go to Harlan’s and take Rowe for they are in touch with Iola people.” On May 25, 1909, she wrote to plaintiff, “Oh, you do not know how I despise Baltimore and everything there. . . . Oh, what a nightmare my sojourn there was.” At one time she wrote her daughter that if she was not going to come she would disinherit her. — adding “you know it would be an easy matter to get a divorce out here in Kansas, if you lived here, and I would suggest that you call on Mr.- and consult him as your lawyer to know if what I state is not correct.”
From certain suggestions found in the briefs of both sides we infer that even the extended abstract fails to embody the substance of all the evidence. However, from the abstract and the findings we have a somewhat graphic picture of the condition of things in the Rowe household. Does the condition thus presented bring the defendant’s conduct within the rule of extreme cruelty? This court has been more liberal in the construction and application of this rule than many others, and while there is no disposition to recede therefrom there is no inclination to extend its liberality. The leading decisions are Gibbs v. Gibbs, 18 Kan. 419; Carpenter v. Carpenter, 30 Kan. 713; Avery v. Avery, 33 Kan. 1; and Masterman v. Masterman, 58 Kan. 748.
The result of these may be thus formulated: Extreme cruelty exists when the conduct of the husband or wife is such that the life or health of the other may be endangered, or when such conduct unjustifiably wounds the mental feelings of the other or so destroys the peace of mind as seriously to impair the health or endanger the life of the other, or is such as utterly destroys the legitimate obj ects and aims of matrimony ;■ and where words alone are relied on it must appear that, they were uttered not merely as complaints against the misconduct of the other, real or apparent, but that they were uttered without justifiable cause and for the purpose of inflicting pain.
The facts shown in Gibbs v. Gibbs, supra, Carpenter v. Carpenter, supra, and Avery v. Avery, supra, are far' more condemnatory than here. In Masterman v. Masterman, supra, the wife made repeated and specific charges against her husband of illicit relations with other women, not only to him, but to many women with whom she associated, the husband being a physician; and there were at least some grounds for her suspicion, shown by the husband’s conduct, but the judgment granting a divorce was reversed. It was there said:
“In the home, love must be the law, and mutual concessions remove all occasions for controversy. The interference of courts can never be invoked beneficially to settle differences in the family. It comes only as a last resort, to separate those who fail or refuse to make home what is should be.” (58 Kan. 757.)
Here, the parties were of mature years, they had abundant time to become well acquainted before marriage, and while, like many others, they had differences, these, sometime before the' separation, were all adjusted, and there is slight evidence or claim of misconduct thereafter. Had these twain been permitted to be one flesh, it is reasonably apparent that they would not have separated.
The marriage relation is too vital and important to be lightly dissolved. We must not suffer ourselves to be misled by sympathy or by a superabundance of allegation followed by a paucity of proof. While the defendant is shown to have a disposition .and temperament unenviable in certain respects, the same may be said to some extent of the plaintiff. But we can find no satisfactory proof of any ill treatment on the part of the husband for the purpose of inflicting pain; on the other hand, his occasional irritability and ebullitions of temper appear to have been concomitant with, or followed by, demonstrative affection, patient forbearance and tender regard, with a deep desire for the love and companionship of his wife. Had she been free and so disposed we have no doubt whatever that she could have kept him constantly “wound round her finger.” While she was not strong, and her cough finally developed into tuberculosis, we can find no just ground for holding that her husband was regardless of her health or the cause of its impairment. Being of a nervous, emotional temperament, and being presistently influenced against her husband, the plaintiff, after repeated assertions of her intention and desire to live with him, and after a full reconciliation of all past differences, was finally persuaded to leave him. Having done this, in attempting to secure the seal of the law to the separation, she appears to have recalled and remembered only the flecks of cloud in the sky óf her marital experience and to have become so embit tered that no good thing concerning her husband could be kept in her memory. This condition of mind, sad as it is, will not justify a divorce unless the husband has by his words and conduct brought about such condition; for equally pathetic is it for him to see his life dream fade away and the wife he loved passionately become his accuser, and that not of her own free will.
We are impelled to the opinion that extreme cruelty was not shown, and the decree is therefore reversed. | [
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The opinion of the court was delivered by
Benson, J.:
A policy of insurance was written to .indemnify the appellee against loss “for damages on account of bodily injuries” suffered by its employees in its mining operations for one year from the date of the policy. The premium had been paid for six months of that time and this action was to recover the remainder, the period having expired.
The appellee pleaded a previous parol agreement with the appellant’s agent for a policy of insurance for six months only, and payment of the premium in Tull. It admitted that the appellant received and held The policy, a copy of which was attached to the petition, .and averred that relying upon the verbal agreement it had paid the premium for six months, and that it was not further liable.' The answer alleged that after .the end of the first six-months period, believing that the policy sued upon had expired, the appellee took out ■other insurance, upon which it had received indemnity for losses accruing afterward, for which the appellant would have been liable had its policy been in effect '.for the year, and that the appellant did not pay any part thereof, although it had knowledge of accidents occurring at the mine. A motion was made to strike ■out these allegations as contained in the third, fourth and fifth paragraphs of the answer, which was denied. Evidence was admitted in support of these allegations, tending to prove that other insurance had been taken out as alleged; that accidents had occurred whereby injuries were suffered by employees at the mine after the expiration of six months from the date of the policy sued upon, and that no payment had been made therefor by the appellant.
If the appellee insured with the appellant for one year it could not avoid liability for premiums by taking out other insurance covering a part of the same ■period. The fact that the appellant did not pay losses is immaterial and should have been stricken out, for there was no allegation or evidence that notice of any .accidents or losses had been given and no breach of the contract was claimed. The fact that the appellee took out other insurance — whether it received indemnity thereon or not — is also an immaterial matter which should have been eliminated from the answer, and upon which evidence should not have been received. The evidence in support of these immaterial allegations was prejudicial, for the jury would naturally infer "that, being admitted in support of express allegations of the answer, it tended to prove a defense.
The answer was not challenged except by the motion above referred to, and another motion to make more definite which was allowed. Nothing further is found in the abstract or in the assignment of errors requiring comment.
The judgment is reversed with directions to allow the motion to strike out parts of the answer and to. grant a new trial. - ■ | [
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Larson, J.;
Paul Wesley Myers appeals the trial court’s denial of his motion requesting a dispositional sentence departure.
Myers was convicted by a jury of involuntary manslaughter, K.S.A. 1993 Supp. 21-3404, arising out of an altercation on July 18, 1993, in which Myers shot and killed Arthur Thornton.
At sentencing, the trial court found the crime was a severity level 5 felony and Myers’ criminal history classification was category F. Myers did not contest either determination, but requested a dispositional departure from the presumption of imprisonment to place him on probation or in community corrections. In support of his motion, Myers alleged mitigating circumstances listed in K.S.A. 1993 Supp. 21-4716 that warranted departure, i.e., the victim was the aggressor and Myers suffered a continuing pattern of physical abuse.
The trial court denied Myers’ motion for a dispositional departure and sentenced him to the mid-range sentence of grid block 5-F of 44 months’ imprisonment. Myers appeals.
Myers concedes his sentence falls within the presumptive range and the trial court correctly determined the crime severity level and criminal history category. His only argument is the trial court erred in denying his motion for a dispositional departure.
The parties were ordered to brief this court’s jurisdiction to hear Myers’ appeal.
K.S.A. 1993 Supp. 21-4721 provides:
“(c) On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:
(1) Any sentence that is within the presumptive sentence for the crime.”
The State argues, based on the plain language of K.S.A. 1993 Supp. 21-4721(c)(l), this court does not have jurisdiction to hear an appeal of a trial court’s denial of a motion for a departure when the sentence imposed falls within the presumptive range.
Myers contends the plain language of the statute does not expressly prohibit an appeal from a sentence where the trial court denied a departure request and because penal statutes are to be strictly construed against the State, we should hear his appeal.
In resolving this jurisdictional question, this court must interpret provisions of the Kansas Sentencing Guidelines Act (KSGA). The interpretation of statutes is a question of law; therefore, this court’s scope of review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
Myers’ argument ignores and fails to take into consideration the general rules of statutory construction. “The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). Finally, the rule that penal statutes are to be strictly construed against the State is subordinate to the rule that judicial interpretation must effectuate the legislative design and true intent of the legislature. State v. Schlein, 253 Kan. 205, 215, 854 P.2d 296 (1993).
To us, the language of K.S.A. 1993 Supp. 21-4721(c)(l) is clear. Neither the defendant nor the State may appeal a sentence that falls within the presumptive range, even if die trial court has denied a motion for departure. The legislative intent and wording of the statute plainly does not allow an appeal when the sentence given falls within the sentencing range (grid block) for the crime and criminal history.
It is also clear that if the trial court departs from the presumptive sentence, that sentence may be appealed by either the defendant or the State. K.S.A. 1993 Supp. 21-4721(a). In addition, a defendant may appeal a sentence that resulted from partiality, prejudice, oppression, or corrupt motive, K.S.A. 1993 Supp. 21-4721(e)(1), or an error in crime severity level or criminal history category, K.S.A. 1993 Supp. 21-4721(e)(2) and (3). Myers does not assert any appealable error herein.
The states of Oregon and Washington have statutes similar to K.S.A. 1993 Supp. 21-4721, which limit appeals of guideline sentences. Decisions by their courts have reached the same result we reach herein.
The Oregon statute, Or. Rev. Stat. § 138.222 (1993), is similar to K.S.A. 1993 Supp. 21-4721. It provides a defendant may not appeal a presumptive sentence but may appeal a departure sentence. The Oregon Court of Appeals has held its statute does not give Oregon appellate courts the authority to review a trial court’s decision not to depart. State v. Fern, 110 Or. App. 185, 822 P.2d 1210 (1991); State v. Cook, 108 Or. App. 576, 816 P.2d 697 (1991), rev. denied 312 Or. 588 (1992).
Similarly, the Washington statute, Wash. Rev. Code § 9.94A.210 (1994), provides that a defendant may not appeal a sentence within the standard range but may appeal a sentence outside the standard range. In Washington, a sentence outside the standard range is called an “exceptional” sentence but is the equivalent of a departure sentence in Kansas. The Washington Court of Appeals has held that under its statute, a defendant can not appeal the trial court’s failure to impose an exceptional sentence. State v. Ward, 65 Wash. App. 900, 830 P.2d 383 (1992).
The appeal attempted herein is precisely the type of an appeal which is not permitted by the KSGA. Appellate courts do not have jurisdiction to consider appeals of this nature.
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Briscoe, C.J.:
Tiny Sampel appeals the dismissal of her petition for injunctive relief under K.S.A. 60-901 et seq. to restrain Robert Balbemie from assaulting, harassing, and threatening her. We reverse the district court’s dismissal of Sampel’s claim for injunctive relief, conclude injunctive relief under 60-901 et seq. is a remedy available to Sampel, and further conclude her petition was not subject to dismissal for failure to state a claim upon which relief could be granted.
Sampel filed a petition seeking a temporary restraining order and an injunction. In her petition, Sampel requested that Balbemie be restrained and enjoined from continuing to harass or abuse her. She alleged Balbemie had “trespassed onto [her] property, forcibly entered her residence and assaulted and battered her.” She also alleged she was unable to obtain adequate protection from the police because she did not have a restraining order. She further alleged that because of these actions by Balbemie and the inability or unwillingness of the police to assist her, she was in fear that unless enjoined Balbemie would continue to threaten, interfere with, or harm her, or disrupt the peace of her place of residence through verbal and physical acts. She alleged she had exhausted every other remedy at law known to her and that without the action of the court she would be without a remedy. The court entered a temporaiy restraining order and scheduled a hearing on the motion for injunction approximately three weeks later. Balbemie filed an answer alleging Sampel was attempting to use this action as a means of prohibiting his visitation of his minor child. Balbemie is Sampel’s former boyfriend, and he alleges he is the father of her minor child.
At the hearing on the injunction, the district court ruled that Sampel was not entitled to relief under K.S.A. 1993 Supp. 60-906 because it did not apply to domestic disputes. The court stated Sampel had other available legal remedies, including filing a criminal complaint or seeking injunctive relief in a paternity action. The court then dismissed Sampel’s petition for failure to state a claim upon which relief could be granted.
Sampel contends injunctive relief under 60-901 et seq. is available to protect an individual from harassment, assault, and threat by another. K.S.A. 60-901 defines “injunction” as “an order to do or refrain from doing a particular act. It may be the final judgment in an action, and it may also be allowed as a provisional remedy.” In the present case, fhe injunction sought is not a provisional remedy intended to enjoin fhe commission or continuance of an act that is the subject of litigation between the parties, but rather it is the final judgment sought. This court has previously addressed what the movant must establish when seeking a provisional remedy through a temporary injunction. See Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, 462, 726 P.2d 287 (1986). Whether injunctive relief is available to Sampel and what she must establish to obtain a permanent injunction are issues of first impression and issues of law subject to de novo review on appeal. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
The district court’s inquiry into whether the parties had a business relationship suggests it may have been following the general rule formerly followed in other jurisdictions that injunctive relief was available to protect only property rights and not personal rights. However, that rule has been abandoned or relaxed in other jurisdictions. See 42 Am. Jur. 2d, Injunctions § 80. It has also been abandoned in Kansas. In Foley v. Ham, 102 Kan. 66, 73, 169 Pac. 183 (1917), the court held that injunctive relief is available to protect personal rights.
In the present case, injunctive relief under the divorce statutes (K.S.A. 1993 Supp. 60-1607[a][2]) and fhe Protection from Abuse Act (K.S.A. 60-3101 et seq.) is not available to Sampel because the parties have not lived together and are not married. See K.S.A. 1993 Supp. 60-3102. K.S.A. 60-3109 provides that pro ceedings under the Act are “in addition to any other available civil or criminal remedies.” General injunctive relief under 60-901 et seq. is one of those other remedies. General injunctive relief is available to protect persons from continuing abuse, harassment, and threats. See Cooley v. Shepherd, 170 Kan. 232, 225 P.2d 75 (1950). General injunctive relief is available to protect persons who are victims of this type of treatment, including persons who experience this treatment in domestic relationships. See Gottlieb & Johnson, Reform in Kansas Domestic Violence Legislation, 31 Kan. L. Rev. 527, 560-62 (1983); Webber v. Gray, 228 Ark 289, 307 S.W.2d 80 (1957); Kramer v. Downey, 680 S.W.2d 524 (Tex. App. 1984). However, our reversal of the dismissal of Sampel’s action is required only if the petition alleged facts that, if proven, would entitle her to injunctive relief.
When reviewing a dismissal for failure to state a claim upon which relief can be granted, whether the dismissal was proper must be decided from the facts pleaded in the petition. Disputed issues of fact cannot be decided on a motion to dismiss for failure to state a claim. The question for determination is whether, when viewed in the light most favorable to plaintiff, and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. The court must accept plaintiff’s description of the facts, along with any inferences that may reasonably be drawn from them. Dismissal is warranted only when the allegations in the petition clearly demonstrate plaintiff does not have a claim. However, the court is not required to accept conclusoiy allegations on the legal effects of the facts alleged if they do not reasonably follow from the description of the facts, or if the allegations are contradicted by the description itself. See Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992).
Injunctive relief is an equitable remedy. To obtain injunctive relief from a prospective injury, the movant must show: (1) there is a reasonable probability of irreparable future injury to the movant; (2) an action at law will not provide an adequate remedy; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. See Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 242, 787 P.2d 716 (1990); Wichita Wire, 11 Kan. App. 2d at 462; 11 Wright & Miller, Federal Practice and Procedure: Civil § 2942 (1973).
Mere apprehension or possibility of wrong or injury ordinarily does not establish a reasonable probability of future injury that will justify injunctive relief. See Mid-America Pipeline, 246 Kan. at 242. To obtain injunctive relief, it must clearly appear that some act has been done, or is threatened, which will produce irreparable injury. U.S.D. No. 503 v. McKinney, 236 Kan. 224, 227, 689 P.2d 860 (1984). A single assault or incident of harassment ordinarily will not justify injunctive relief. However, continuing or recurring conduct may be sufficient. See 42 Am. Jur. 2d, Injunctions § 134. A single violent act may be sufficient if it is accompanied by threats of future violence; recurrence may be reasonably probable, especially in domestic disputes. See 31 Kan. L. Rev. at 561.
Here, Sampel did not expressly allege repeated or continuing assaults, threats, or harassment by Balbemie, nor did she allege that he threatened future violence and harassment. But, when the allegation that Balbemie “has trespassed onto the plaintiff’s property, forcibly entered her residence and assaulted and battered her” is read in the light most favorable to Sampel, her allegations can be read to allege repeated or continuing conduct. In addition, Sampel’s allegation that Balbemie’s actions and the inaction of the police placed her in fear that Balbemie would continue to harass, assault, batter, and threaten her is sufficient to allege a reasonable probability of future injury which would be irreparable.
The allegations that Sampel lacked an adequate legal remedy are also sufficient. An action for damages would be inadequate to prevent threatened physical harm. The allegation that the police were unable or unwilling to help her without a restraining order was sufficient to show that criminal prosecution was not an adequate remedy. See 31 Kan. L. Rev. at 561-62. The potential availability of a restraining order in a paternity action did not establish an adequate legal remedy. No paternity action had been filed, and Sampel should not be required to file such an action to prevent assaults and harassment by Balbemie simply because he claimed to be the father of her child.
In reading SampeFs petition in the light most favorable to her, we must also conclude her initial allegations of physical harm and anticipated future physical harm are sufficient to outweigh Balbemie’s alleged right to visit a child whose paternity has not been established. Finally, when viewed as a dismissal for failure to state a claim, the entry of an injunction prohibiting Balbemie from forcibly entering SampeFs property and assaulting and battering her would not be adverse to the public interest.
The district court’s dismissal of the action for failure to state a claim upon which relief could be granted is reversed, and the case is remanded for further proceedings. | [
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Royse, J.:
Oren G. Gamble, Sr., filed a petition for expungement which the district court denied. Gamble appeals.
Gamble pled guilty to burglary, a class D felony, and was sentenced to a term of two to seven years. The district court placed him on probation for three years. Gamble completed the probation in 1984.
On January 19, 1994, Gamble filed a petition to expunge the burglary conviction. His petition alleged that he had not been convicted of a felony in the past seven years and that no proceeding involving any such crime is presently pending or being instituted against him. The district court conducted a hearing on the petition, and Gamble disclosed that he had been convicted in Missouri in 1986 for receiving stolen property. Gamble informed the court that he was still on parole for that conviction. At the conclusion of the hearing, the district court denied Gamble’s petition.
K.S.A. 1994 Supp. 21-4619(a) authorizes a person who has been convicted of a class D felony to petition for expungement of the conviction if three or more years have elapsed since the person was discharged from probation. K.S.A. 1994 Supp. 21-4619(e) requires the court to order expungement if the court finds:
“(1) The petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending or being instituted against the petitioner;
(2) the circumstances and behavior of the petitioner warrant the expungement; and
(3) the expungement is consistent with the public welfare.”
The district court identified two problems with Gamble’s petition for expungement. First, the district court concluded that Gamble’s continuing parole status in Missouri was a “pending proceeding” under 21-4619(e)(l). Second, the district court discussed Gamble’s substantial criminal record and continuing parole status in light of the public welfare, the public interest, and Gamble’s expressed desire to practice law. The district court concluded that it could not make the required findings.
Gamble argues on appeal that the district court (1) erred in construing 21-4619(e) and (2) erred in refusing to make the required findings under 21-4619(e). He also contends that the district court discriminated against him because he wants to become a lawyer.
The general rule is that a decision whether to grant a petition for expungement is an exercise of judicial discretion. In State v. Underwood, 228 Kan. 294, Syl. ¶ 1, 615 P.2d 153 (1980), the Supreme Court stated:
“The granting or denial of an application for annulment or expungement of a conviction is a judicial function. Such power contemplates a judicial inquiry and the exercise of judicial discretion in the same way a court exercises discretion in the granting of probation . . . subject, however, to those limitations imposed by the annulment or expungement statutes.”
In this case, however, the district court’s conclusion that parole is a “pending proceeding” within K.S.A. 1994 Supp. 21-4619(e) was a conclusion of law. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). Appellate review of questions of law is unlimited. Hillman v. Colonial Penn Ins. Co., 19 Kan. App. 2d 375, 376, 869 P.2d 248 (1994).
The first issue raised by Gamble requires us to interpret K.S.A. 1994 Supp. 21-4619(e)(l). K.S.A. 1994 Supp. 77-201 Second provides: “Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings.”
It is the court’s responsibility, as far as practicable, to reconcile different provisions within an act to make them consistent, harmonious, and sensible. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). Even a penal statute subject to strict construction should not be read so as to add that which is not readily found therein, or read out what, as a matter of ordinary language, is in it. State v. Logan, 198 Kan. 211, 213, 424 P.2d 565 (1967).
After applying the foregoing principles, we are persuaded that the district court erred in concluding that parole is a “pending proceeding.” First, the term “pending” is generally understood to mean
“[b]egun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment. Awaiting an occurrence or conclusion of action, period of continuance or indeterminacy. Thus, an action or suit is 'pending’ from its inception until the rendition of final judgment.” (Emphasis added.) Black’s Law Dictionary 1134 (6th ed. 1990).
In fact, the Supreme Court has previously held that the term “pending action,” as used in K.S.A. 60-236, does not include an action in which judgment has become final. Boyce v. Knudson, 219 Kan. 357, 364, 548 P.2d 712 (1976).
The term “proceeding” has also acquired an accepted meaning:
“In a general sense, the form and manner of conducting juridical business before a court or judicial officer. . . .
“. . . The word may be used synonymously with ‘action’ or ‘suit’ to describe the entire course of an action at law or suit in equity from the issuance of the writ or filing of the complaint until the entry of a final judgment. . . . The proceedings of a suit embrace all matters that occur in its progress judicially.” (Emphasis added.) Black’s Law Dictionary 1204 (6th ed. 1990).
In summary, both “pending” and “proceeding” denote matters that occur in court until final judgment. In criminal cases, a final judgment requires a conviction and sentence or suspension of sentence. State v. Rucas, 12 Kan. App. 2d 68, 72, 734 P.2d 673 (1987). These definitions would indicate that parole is not a pending proceeding for purposes of K.S.A. 1994 Supp. 21-4619.
This conclusion is supported by an examination of the statutory context for the term “pending proceeding.” K.S.A. 1994 Supp. 21-4619(e)(l) precludes expungement for individuals convicted of a felony in the past two years. In that same subsection, however, the legislature used the word crime in discussing pending proceedings. It is presumed that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute. Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993). We interpret the use of different language in K.S.A. 1994 Supp. 21-4619(e)(l) to mean that a “proceeding involving any such crime” does not refer to a felony conviction or the consequences of a felony conviction.
Finally, we note that the legislature used the word “parole” in K.S.A. 1994 Supp. 21-4619(a): a person may petition for ex-pungement if more than three years have elapsed since the person “was discharged from probation, a community correctional services program, parole, postrelease supervision, conditional release or a suspended sentence.” The legislature’s decision not to use the word parole in K.S.A. 1994 Supp. 21-4619(e)(l) further supports the conclusion that “pending proceeding” does not include parole. See State v. Haug, 237 Kan. 390, 391-92, 699 P.2d 535 (1985) (where expungement statute refers explicitly to records of conviction, statute will not be applied to record of diversion).
For all the foregoing reasons, we conclude the district court erred in holding that parole is a pending proceeding under K.S.A. 1994 Supp. 21-4619(e)(l). Under the circumstances of this case, however, that error was harmless.
An error is harmless when it does not adversely affect the substantial rights of a defendant and substantial justice results despite the error. See State v. Ferguson, 254 Kan. 62, 85, 864 P.2d 693 (1993). Under K.S.A. 1994 Supp. 21-4619(e), expungement is required if the district court makes three specific findings. In this case, the district court’s misinterpretation of 21-4619(e)(l) did not invalidate its refusal to make the other two specified findings.
The district court examined the record and determined that it could not find Gamble’s circumstances and behavior warranted expungement and that the expungement was consistent with the public welfare. The record showed that Gamble had been convicted of at least five felonies and several misdemeanors. Gamble admitted that one of his convictions came after he had completed probation on the burglary conviction. The record showed that Gamble had been characterized as a “persistent offender” in Missouri and had received a controlling sentence of 15 years on his 1986 conviction. Gamble told the district court that he was scheduled to be released from parole in about 18 months. The district court emphasized Gamble’s continuing parole and his criminal history in refusing to make the other two statutory findings.
The appellate standard for reviewing a district court’s discretion has been clearly stated: “ ‘Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’ ” In re Marriage of Cray, 254 Kan. 376, 387, 867 P.2d 291 (1994) (quoting Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 [1973]).
Reasonable people could take the view adopted by the district court. Gamble’s criminal history and the fact that he remained on parole were appropriate matters for the district court to consider in deciding whether to grant or deny Gamble’s petition for expungement.
Finally, Gamble contends that the district court discriminated against him because he wants to become a lawyer. This contention is without merit. In fact, the district judge told Gamble to finish his parole in Missouri and “come back and I’ll give it further consideration.” The district court was obviously focusing on Gamble’s continuing parole status, not his legal ambitions.
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Lewis, J.:
Petitioner, Shane L. Paletta, filed a petition for a writ of habeas corpus. The trial court dismissed the petition as being without merit. This appeal followed.
Petitioner entered into a diversion agreement with the City of Topeka in 1986 in order to avoid being prosecuted for DUI. At the time he entered into the agreement, he was not represented by counsel, was not informed of his right to counsel, and did not waive his right to counsel. Petitioner apparently lived up to the terms of the diversion, and he was never prosecuted or imprisoned for the 1986 DUI charge.
In 1990, petitioner was again prosecuted for DUI. This appeal arises out of the 1990 prosecution. In that case, petitioner was represented by counsel and was convicted of DUI. He was fined and sentenced to five days in jail and placed on one year’s supervised probation.
Petitioner appealed his 1990 conviction to the Shawnee County District Court. That court dismissed his appeal. The dismissal was appealed to this court, and we affirmed the decision of the trial court. City of Topeka v. Paletta, No. 68,454, unpublished opinion filed March 12, 1993.
A series of remands placed petitioner back before the municipal court in 1993. In June 1993, he moved the municipal court to modify his 1990 sentence, and that motion was denied.
In November 1993, petitioner again asked thé municipal court to modify the 1990 sentence. This time, the court did so, modifying the sentence to two days in jail, 10 days’ house arrest, a fine of $500, and probation for one year. Petitioner did not take a direct appeal from the modified sentence.
In January 1993, petitioner filed the present action in the district court. That court issued an order staying execution of the municipal sentence originally given in 1990 and modified in 1993. It appears that stay remains in effect.
The petition for habéas corpus was submitted on stipulated facts and admitted documents. The trial court held that the municipal court sentence was legal and dismissed the petition. If is now March 1995, and the sentence imposed originally in 1990 and modified in 1993 has yet to be executed. Indeed, at this stage, the parties litigate whether the sentence imposed was legal.
Because this action was tried on stipulated facts and documents, we exercise de novo review. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, Syl. ¶ 1, 744 P.2d 840 (1987).
JURISDICTION
Appeals from a municipal court may be taken as provided by K.S.A. 1994 Supp. 22-3609 and K.S.A. 12-4602. Judgment of a municipal court is effective upon announcement, and the time for appeal commences upon announcement. City of Lenexa v. Higgins, 16 Kan. App. 2d 499, Syl. ¶¶ 1, 2, 825 P.2d 1152, rev. denied 250 Kan. 804 (1992). “No appeal shall be taken more than 10 days after the date of judgment appealed from.” K.S.A. 1994 Supp. 22-3609(2).
In this case, the modified sentence was imposed on November 1, 1993. That sentence was not appealed. Instead, the habeas corpus action was filed on January 30, 1994.
A petition for habeas corpus is not a substitute for appeal in a criminal case. This rule applies to appeals from municipal court. In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 205, 708 P.2d 977 (1985). Despite this general rule, habeas corpus remains an appropriate remedy where constitutional rights are at issue. Petitioner relies upon Gilchrist to confer jurisdiction on this court. In order to determine whether we have jurisdiction over this appeal, we must decide first whether petitioner’s constitutional rights are at issue.
Petitioner contends the municipal court enhanced his sentence on the basis of the uncounseled 1986 diversion. Our Supreme Court has determined that an uncounseled diversion agreement cannot be used to enhance the sentence for a subsequent DUI conviction. State v. Priest, 239 Kan. 681, 685, 722 P.2d 576 (1986). “This insures that an individual’s Sixth Amendment right to counsel is protected.” 239 Kan. at 683.
The City argues that the municipal court imposed a lawful sentence and that the record does not affirmatively disclose that petitioner’s sentence was enhanced or that he was treated as a second-time offender.
To determine whether petitioner’s constitutional rights are at issue in this case, we must first determine whether the municipal court, in fact, enhanced his sentence or treated him as a second-time offender. If it did, then this case presents a constitutional issue, and we have jurisdiction to consider the merits of the appeal. If the court did not enhance his sentence, he will not be allowed to substitute a direct appeal with a habeas corpus petition.
As will be seen, we conclude that petitioner was sentenced as a second-time offender and that we have jurisdiction over this appeal.
FIRST- OR SECOND-TIME OFFENDER
The question is whether petitioner was sentenced as a first- or second-time offender. He argues that his uncounseled 1986 diversion was used as a prior conviction to enhance his sentence and that he was sentenced as a second-time offender. The City argues that the sentence imposed was lawful. It contends that the sentence could have been imposed upon either a first- or second-time offender and that the diversion was not used to enhance petitioner’s sentence.
The 1990 sentence clearly treated petitioner as a second-time offender. However, that sentence has been modified; it is past histoxy and irrelevant. The only sentence which is relevant on this appeal is the sentence imposed in 1993 when the 1990 sentence was modified. The record of the 1993 modification does not affirmatively indicate that it was imposed upon petitioner as a second-time offender. Despite the fact that the court did not affirmatively say so, we can only conclude that the 1993 modification was given to petitioner as a second-time offender.
The telling detail is the sentence of defendant to 10 days’ house arrest. This is the only term of the modified sentence tliat could not have been imposed on a first-time offender.
The standard traffic ordinance of Topeka, in effect in December 1990, mirrors K.S.A. 1989 Supp. 8-1567. The relevant portions of standard traffic ordinance No. 30 were as follows:
“(d) Upon a first conviction of a violation of this section, a person shall be sentenced to not less than 48 consecutive hours’ nor more than six months’ imprisonment, or in the court’s discretion 100 hours of public service, and fined not less than $200 nor more than $500. The person convicted must serve at least 48 consecutive hours imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole. In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. Supp. 8-1008 and amendments thereto, or both the education and treatment programs.
“(e) On a second conviction of a violation of this section, a person shall be sentenced to not less than 90 days’ nor more than one year’s imprisonment and fined not less than $500 nor more than $1,000. Except as provided in subsection (g), the person convicted must serve at least five consecutive days’ imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. Supp. 8-1008 and amendments thereto.
“(g) On a second or subsequent conviction of a violation of this section, the court matj place the person convicted under a house arrest program to serve the remainder of the minimum sentence only after such person has served 48 hours’ consecutive imprisonment.
“(k) For the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:
(1) ‘Conviction’ includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(3) Only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable.” (Emphasis added.)
It is clear that a sentence of house arrest may only be imposed upon a second-time offender. The emphasized language of standard traffic ordinance No. 30(g) leaves room for no other conclusion. The ordinance only authorizes a sentence of house arrest on a second or subsequent conviction.
Petitioner argues that the sentence of 10 days’ house arrest is an illegal sentence, citing State v. Scherzer, 254 Kan. 926, 869 P.2d 729 (1994). The issue in Scherzer was whether house arrest constituted imprisonment for purposes of the vehicular battery statute. Conviction of vehicular battery required a minimum sentence of 90 days’ imprisonment before eligibility for release on probation, suspension, reduction of sentence, or parole.
In Scherzer, the trial court imposed a 90-day sentence but ordered the sentence to be served under house arrest. The State appealed the sentence, arguing that “house arrest” was not “imprisonment.”
The Supreme Court held that house arrest was not “imprisonment.” 254 Kan. at 936. The court stated that house arrest might be a condition of probation, a suspended sentence, or assignment to community corrections, but could not substitute for the minimum sentence of 90 days’ imprisonment.
The City argues that house arrest is available to a convicted offender without regard to whether it is a first or second conviction. We do not agree.
The City makes the same argument that was made by the State in Scherzer. House arrest was exclusively a sentence option for the class D felony of aggravated vehicular homicide, pursuant to K.S.A. 1992 Supp. 21-3405a, but not for the class A misdemeanor of vehicular battery. In this case, house arrest is exclusively a sentence option for a second-time DUI offender. The appellate courts have no choice but to apply the sentencing statutes as they have been written by the legislative bodies. The mere fact that some element of logic may be lacking does not justify a court in departing from the obvious intent of the legislative body.
In this case, standard traffic ordinance No. 30(d) provides two sentencing options available to the municipal court for first-time offenders: (1) 48 hours’ to 6 months’ imprisonment and a fine of $200 to $500 or (2) 100 hours’ public service.
Under Scherzer, house arrest is not imprisonment and would not be a proper sentence under standard traffic ordinance No. 30(d) unless it were made a condition of probation, suspension, reduction of sentence, or parole.
Our construction of the journal entry of sentencing in this case leads us to conclude that the 10-day house arrest was not,- a condition of probation, suspension, reduction of sentence, or parole. The sentence of house arrest could be imposed only on a second-time offender, and that requires that we treat the 1993 modification as having been imposed on petitioner as a second-time offender by using his uncounseled 1986 diversion.
MAY AN UNCOUNSELED DUI DIVERSION BE USED TO ENHANCE A SENTENCE FOR A SECOND DUI?
This issue requires us to revisit our Supreme Court’s decision in State v. Priest, 239 Kan. 681. In doing so, we must clear away the confusion created on this issue by the United States Supreme Court.
In State v. Oehm, 9 Kan. App. 2d 399, 680 P.2d 309 (1984), we held that a prior uncounseled misdemeanor conviction could not be used to enhance a sentence in a subsequent DUI prosecution. State v. Priest simply extended the logic of State v. Oehm to include an uncounseled diversion agreement. Priest held that an uncounseled diversion agreement, where counsel was not waived, could not be used to enhance the sentence of a DUI offender. If Oehm and Priest remain the law of this State, then we must vacate petitioner’s sentence because it was imposed upon him as a second-time offender, a status he could reach only by considering his uncounseled 1986 diversion as a first conviction.
In this state, cases involving the right to counsel have been traditionally viewed as Sixth Amendment cases and have followed the precedent established by the Supreme Court of the United States. See, e.g., State ex rel. Stephan v. Smith, 242 Kan. 336, 349-50, 747 P.2d 816 (1987); In re Habeas Corpus Application of Gilchrist, 238 Kan. at 206; Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985); State v. Oehm, 9 Kan. App. 2d at 401-03. For that reason, we begin by reviewing the pronouncements of the Supreme Court of the United States on this issue.
In Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158 (1979), the court held that where no sentence of imprisonment was imposed, a defendant charged with a misdemeanor had no constitutional right to counsel. This decision was consistent with the earlier decision of Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). Under these decisions, a prior uncounseled conviction could be used to enhance a defendant’s sentence on a subsequent conviction.
In 1980, the United States Supreme Court decided Baldasar v. Illinois, 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585 (1980). Baldosar was so fractured that there was no majority opinion written. Instead, there were three concurring opinions joined by five justices and a dissenting opinion joined by four justices. It has been a subject of considerable debate as to just what Baldosar stood for.
“In Marks v. United States, 430 U.S. 188, 51 L. Ed. 2d 260, 97 S. Ct. 990 (1977), we stated that ‘[wjhen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....”’ Id., at 193, 51 L. Ed. 2d 260, 97 S. Ct. 990, quoting Gregg v. Georgia, 428 U.S. 153, 169, n.15, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). This test is more easily stated than applied to the various opinions supporting the result in Baldosar. A number of Courts of Appeals have decided that there is no lowest common denominator or ‘narrowest grounds’ that represents the Court’s holding. See, e.g, United States v. Castro-Vega, 945 F.2d 496, 499-500 (CA2 1991); United States v. Eck ford, 910 F.2d 216, 219, n.8 (CA5 1990); Schindler v. Clerk of Circuit Court, 715 F.2d 341, 345 (CA7 1983), cert. denied, 465 U.S. 1068, 79 L. Ed. 2d 745, 104 S. Ct. 1419 (1984). Another Court of Appeals has concluded that the holding in Baldosar is Justice Blackmun’s rationale, Santillanes v. United States Parole Comm’n, 754 F.2d 887, 889 (CA10 1985); yet another has concluded that the ‘consensus’ of the Baldosar concurrences is roughly that expressed by Justice Marshall’s concurring opinion. United States v. Williams, 891 F.2d 212, 214 (CA9 1989). State courts have similarly divided. The Sentencing Guidelines have also reflected uncertainty over Baldosar. We think it not useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts which have considered it. This degree of confusion following a splintered decision such as Baldosar is itself a reason for reexamining that decision. Payne v. Tennessee, 501 U.S. 808,_, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991); Miller v. California, 413 U.S. 15, 24-25, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973).” Nichols v. United States, 511 U.S. -, 128 L. Ed. 2d 745, 753-54, 114 S. Ct. 1921 (1994).
Despite some confusion, Baldosar did overrule Scott v. Illinois and is widely considered to prohibit the use of the prior uncounseled conviction to enhance the penalty or the status of a later conviction.
The recent decision of Nichols v. United States overruled Baldosar and held that “an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” 128 L. Ed. 2d at 755. Nichols returns the state of the law to the position it was in when Scott v. Illinois was decided.
The question we must decide is whether State v. Oehm and State v. Priest must be followed in light of the decision in Nichols.
The issue is purely one of constitutional law, and the question involves the Sixth Amendment right to counsel. There is no statutory requirement in this state mandating that a defendant have counsel to enter into a misdemeanor diversion agreement. K.S.A. 12-4414(c) provides only that “[i]n all cases, the defendant shall be present and shall have the right to be represented by counsel at the diversion conference with the city attorney.” This statutory provision does not mandate that counsel be provided for a defendant nor void any diversion agreement entered into without counsel.
“This court is required to apply the law established by the decisions of our Supreme Court, absent some indication that the court is departing from its previously expressed position.” Zion Lutheran Church v. Kansas Comm’n on Civil Rights, 16 Kan. App. 2d 237, 242, 821 P.2d 334 (1991), aff’d 251 Kan. 206, 830 P.2d 536 (1992). This court will not rule contrary to recent holdings of our Supreme Court “ ‘unless a valid reason exists to believe the Supreme Court would reach a different result if it were to reconsider the issue.’ ” Mercer v. Fritts, 9 Kan. App. 2d 232, 235, 676 P.2d 150, aff’d 236 Kan. 73, 689 P.2d 774 (1984).
We have carefully considered our obligations as indicated by the authorities quoted above. We conclude that our Supreme Court would not adhere to State v. Priest or State v. Oehm if it were to reconsider the issue in light of Nichols. As we read Priest, it was a logical extension of our decision in Oehm. Oehm specifically held that a prior uncounseled misdemeanor conviction could not be used to enhance the sentence in a subsequent DUI conviction. In doing so, we considered Argersinger v. Hamlin, Scott v. Illinois, and Baldasar v. Illinois. We ultimately held that: “Baldosar requires us to hold defendant’s sentence to 90 days’ imprisonment was constitutionally impermissible.” 9 Kan. App. 2d at 402.
Oehm was specifically decided on the authority of Baldosar, which has now been overruled. Priest simply extended the holding in Oehm to include an uncounseled diversion among those matters which could not be used to enhance sentence on a subsequent DUI conviction.
We conclude that both Oehm and Priest are based on the holding in Baldosar, which is no longer the law. We deal here with a Sixth Amendment right to counsel in which our courts have traditionally followed the precedent established by the United States Supreme Court. This leads us to hold that our Supreme Court would no longer follow Priest but would adopt the holding in Nichols.
We are joined in our decision by courts of other states which have reevaluated their decisions regarding the use of uncounseled misdemeanor convictions in light of the decision in Nichols.
The Supreme Court of West Virginia overruled a prior decision which relied on Baldasar v. Illinois. State v. Hopkins, 192 W. Va. _, Syl. ¶ 3, 453 S.E.2d 317 (1994).
- The Virginia Court of Appeals held that a prior DUI conviction, valid because no imprisonment resultéd, could be used to enhance the punishment for a second-time offender. James v. Commonwealth, 18 Va. App. 746, 749-51, 446 S.E.2d 900 (1994). The Virginia Court of Appeals held in another case that an uncounseled DUI conviction which did result in a prison sentence could not be used to enhance a subsequent DUI offense. Griswold v. Commonwealth, 19 Va. App. 477, 453 S.E.2d 287 (1995). Griswold held this even where the sentenced imposed was suspended. 19 Va. App. at 482.
The Mississippi. Supreme Court found Nichols controlling on the issue of the use of uncounseled DUI convictions to enhance the penalty for subsequent DUI convictions. Ghoston v. State, 645 So. 2d 936, 938, (Miss. 1994).
The Nebraska Court of Appeals predicted that Nebraska’s Supreme Court, in light of Nichols, would reverse its reliance on Baldasar. LeGrand v. State, 3 Neb. App. 300, 317, 527 N.W.2d 203 (1995).
.We hold that based on Nichols, an uncounseled diversion may be used as a prior conviction to enhance sentencing in a subsequent conviction so long as no imprisonment was actually imposed on the, uncounseled diversion. Under these circumstances, the Sixth Amendment right to counsel does not apply. We decline to follow State v. Oehm and State v. Priest for the reasons stated.
Affirmed. | [
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Brazil, J.:
Lonnie Porting appeals from a trial court determination that he is not eligible for sentence conversion under the Kansas Sentencing Guidelines Act. He contends the trial court lacked jurisdiction to consider the State’s objection to the Department of Corrections’ (DOC) determination regarding Porting’s criminal history. We affirm.
In May 1990, following his plea of guilty to burglary in one case and plea of no contest to aggravated failure to appear in a second case, Porting received sentences of one to five years and one to two years, with the sentences to run consecutively. On September 22, 1993, the DOC issued a sentencing guidelines report showing that Porting had no prior convictions and determining that Porting was eligible for conversion of his sentence under the guidelines. On October 19, 1993, the State filed an objection to the criminal history score contained in the sentencing guidelines report, and a hearing was scheduled for December 9, 1993. The State appeared at the scheduled hearing by the Reno County Attorney, but Porting’s counsel did not appear, and the trial court continued the matter to January 13, 1994.
At the hearing on January 13, 1994, the State introduced a journal entry from a prior case showing that Porting had convictions on three counts of aggravated assault. In a journal entry filed on March 15, 1994, the trial court ruled that Porting was not eligible for conversion of his sentence under the guidelines due to his three prior convictions for aggravated assault.
K.S.A. 1994 Supp. 21-4724(d)(3) provides that, in the event a party requests a hearing regarding conversion of a sentence under the sentencing guidelines pursuant to K.S.A. 1994 Supp. 21-4724(d)(1), “the court shall schedule and hold the hearing within 60 days after it was requested and shall rule on the issues raised by the parties within 30 days after the hearing.”
Porting argues that because the trial court conducted the conversion hearing on January 13, 1994, more than 60 days after the State filed its request for a hearing, the trial court lacked jurisdiction to consider the State’s objection to the DOC’s determination regarding Porting’s criminal history. Porting also notes that the journal entry in the case was not filed within 30 days of the hearing as required by K.S.A. 1994 Supp. 21-4724(d)(3). Consequently, he argues his sentence should have been converted by the DOC under K.S.A. 1994 Supp. 21-4724(d)(l).
The issue presented is one of statutory interpretation. Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). This court exercises unlimited review over questions of law. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
“Whether language in a statute is mandatory or directory is to be determined on a ease-by-case basis and the criterion as to whether a requirement is mandatory or directory is whether compliance with such requirement is essential to preserve the rights of the parties. Griffin v. Rogers, 232 Kan. 168, 174, 653 P.2d 463 (1982). In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system, and dispatch of the public business, the provision is directory. Factors which would indicate that the provisions of a statute or ordinance are mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than ihat designated, or (2) a provision for a penalty or other consequence of noncompliance. Paul v. City of Manhattan, 212 Kan. 381, Syl. ¶¶ 1, 2, 511 P.2d 244 (1973).” State v. Deavers, 252 Kan. 149, 167, 843 P.2d 695 (1992), cert. denied 125 L. Ed. 2d 676 (1993).
The fact that K.S.A. 1994 Supp. 21-4724(d)(3) contains the word “shall” is not dispositive. Kansas courts have read “shall” to mean “may” where the context requires. Paul v. City of Manhattan, 212 Kan. 381, 385, 511 P.2d 244 (1973).
In Baier v. State, 197 Kan. 602, 419 P.2d 865 (1966), a defendant argued that the trial court lost jurisdiction over the case because the arraignment did not follow the arrest within the required period of time. The Supreme Court stated that “it does not follow that the court thereby lost jurisdiction. Indeed, the statute provides for no such consequence in the event of its breach [citation omitted], and we know of no authority requiring such a drastic result.” 197 Kan. at 607. In State v. Fink, 217 Kan. 671, 676, 538 P.2d 1390 (1975), the court stated that “a legislative enactment which does not expressly provide for discharge or dismissal, if not complied with, has been construed as merely directory.” The court has also remarked that “[a] legislative enactment providing for a speedy trial, with no sanction for failure to comply with the mandate, is generally construed as directory.” State v. Clark, 222 Kan. 65, 68-69, 563 P.2d 1028 (1977).
Applying the foregoing principles we conclude that the provisions of K.S.A. 1994 Supp. 21-4724(d)(3) are directory and not mandatory. Strict compliance with K.S.A. 1994 Supp. 21- 4724(d)(3) is not essential to preserve a defendant’s substantial rights or the validity of the proceedings. Rather, the provision fixes a mode of proceeding and a time within which an official act is to be done, thereby securing order, system, and dispatch of the public business, namely conversion of sentences under the sentencing guidelines. There are no negative words requiring that the trial court conduct such hearings and issue its orders in no other manner or at no other time than that designated. Finally, there is no provision that failure to comply with K.S.A. 1994 Supp. 21-4724 will result in dismissal, discharge, or any other consequence.
The original hearing regarding conversion of Porting’s sentence was scheduled for December 9, 1993, within 60 days of the State’s request for a hearing. The trial court continued the matter until January 13, 1994, only because defense counsel failed to appear. Because the provisions of K.S.A. 1994 Supp. 21-4724(d)(3) are merely directory and not mandatory, the trial court did not lose jurisdiction to determine whether Porting was eligible for conversion of his sentence pursuant to K.S.A. 1994 Supp. 21-4724(d).
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Shepherd, J:
The natural parents of L.B., C.B., and V.B. appeal the trial court’s termination of their parental rights. Both parents challenge the constitutionality of K.S.A. 38-1585(a)(l), which creates a rebuttable presumption of parental unfitness. Both parents also challenge die sufficiency of the evidence supporting the trial court’s decision to sever their parental rights.
The parents contend that K.S.A. 38-1585(a)(l) violates the Due Process Clause of the United States Constitution by shifting the burden of proof to the parent. Enacted in 1992, K.S.A. 38-1585 provides, in relevant part:
“(a) It is presumed in the manner provided in K.S.A. 60-414 and amendments thereto that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes by clear and convincing evidence that:
(1) A parent has previously been found to be an unfit parent in proceedings under K.S.A. 38-1581 et seq. and amendments thereto, or comparable proceedings under the laws of another state, or the federal government;
“(b) The burden of proof is on the parent to rebut the presumption. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall now terminate the parent’s parental rights in proceedings pursuant to K.S.A. 38-1581 et seq. and amendments thereto.”
At the termination hearing, the trial court took judicial notice of two prior cases in which the parents were found to be unfit. The trial court applied K.S.A. 38-1585(a)(l) and held that the parents failed to produce clear and convincing evidence required to rebut the presumption of unfitness created by the prior findings of unfitness. The trial court terminated their parental rights.
It is a fundamental principle of Kansas law that statutes are presumed constitutionally valid. See Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, Syl. ¶ 1, 714 P.2d 975 (1986).
‘This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.” State v. Huffman, 228 Kan. 186, 189, 612 P.2d 630 (1980).
See State ex rel. Schneider v. Kennedy, 225 Kan. 13, 19-21, 587 P.2d 844 (1978).
The United States Supreme Court established the general standard for determining constitutionality of statutory presumptions in Mobile, J. & K.C.R.R. v. Turnipseed, 219 U.S. 35, 55 L. Ed. 78, 31 S. Ct. 136 (1910). The Court held that a legislative presumption of one fact from evidence of another does not constitute a denial of due process of law if there is “some rational connection between the fact proved and the ultimate fact presumed” and if “the inference of one fact from proof of another” is not “so unreasonable as to be a purely arbitrary mandate.” 219 U.S. at 43. See also Clements v. United States Fidelity & Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 (1988) (stating that the test for due process is “whether the legislative means selected has a real and substantial relation to the objective sought”) (citing State ex rel. Schneider v. Liggett, 223 Kan. 610, 614, 576 P.2d 221 [1978]); 16A Am. Jur. 2d, Constitutional Law § 852 (summarizing case law on validity of statutory presumptions).
The relevant question is whether there is a rational connection between the fact proved, which is a past judicial determination of unfitness, and the ultimate fact presumed, which is that the parent is unfit as to the present child.
The parents argue that a prior finding of unfitness has no probative value concerning their current fitness. A finding of unfitness under K.S.A. 38-1583(a) requires the State to prove by clear and convincing evidence that the parent “is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.”
Because a prior determination of unfitness essentially requires a finding that the parent will continue to be unfit into the foreseeable future, such a prior determination is rationally connected to a parent’s current fitness. A parent’s past conduct necessarily has some probative value as to that parent’s likely future conduct. For the same reason, inferring a parent’s current unfitness from a past finding of unfitness does not appear to be so unreasonable as to be purely arbitrary.
The United States Supreme Court has also held that a statutory presumption would not violate due process provided the party affected has a “reasonable opportunity” to rebut the presumption through presentation of evidence. Mobile, J. and K.C.R.R. v. Turnipseed, 219 U.S. at 43.
K.S.A. 38-1585(b) allows the parent an opportunity to rebut the presumption of unfitness. However, the statute does not specify the degree of evidence needed to overcome the presumption of unfitness. The statute merely states that “[i]n the absence of proof that the parent is presently fit,” the court shall terminate the parent’s rights. K.S.A. 38-1585(b).
In the present case, the trial court applied a clear and convincing evidence standard of proof in holding that the parents failed to rebut the presumption of unfitness. We believe the use of such a high standard of proof denied the parents a “reasonable opportunity” to rebut the presumption.
In considering the standard of proof needed for the rebuttal of a presumption, 29 Am. Jur. 2d, Evidence § 199, states:
“Courts have expressed the burden of proof that the adversely affected party must satisfy in order to avoid . . . the presumed fact, in a variety of ways: the evidence rebutting a presumption must be substantial, credible, positive, or must be sufficient to raise an issue of fact. . . . Other courts have held that any evidence having a tendency to support the nonexistence of the presumed fact will suffice. With regard to a typical presumption, therefore, to avoid a directed verdict as to the presumed fact, the party adversely affected by the presumption must offer sufficient evidence to permit a rational factfinder to find the nonexistence of the presumed fact by a preponderance of the evidence.” (Emphasis added.)
A uniform standard of proof must exist, however, and a case-by-case determination of how much evidence is required would be improper. See Santosky v. Kramer, 455 U.S. 745, 757, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). Given the fundamental rights at stake in a termination of parental rights proceeding, we believe a lower standard of proof is required. When faced with a presumption of unfitness created by K.S.A. 38-1585(a)(l), the parent should be able to successfully rebut that presumption by showing parental fitness by a preponderance of the evidence.
The parent, through presentation of evidence, has a reasonable opportunity to rebut the presumption of unfitness created by K.S.A. 38-1585(a)(l). Therefore, the statutory presumption does not violate the due process clause. Given the strong presumption of constitutionality that applies to the statute, we cannot conclude that K.S.A. 38-1585(a)(l) is unconstitutional when construed and applied as we have stated and required herein.
We hold that to rebut the K.S.A. 38-1585(a)(1) presumption of unfitness, a parent must prove fitness by a preponderance of the evidence. Accordingly, it was error for the trial court to apply a clear and convincing standard of proof. We reverse the trial court’s termination of the parents’ parental rights and remand to the trial court for a new termination hearing.
Both parents also challenge the sufficiency of the evidence supporting the trial court’s decision to sever their parental rights. Because we reverse the termination, we need not reach this issue.
Reversed and remanded. | [
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Lyle, J.:
Mark Anderson appeals from a decision of the district court finding him guilty of driving while under the influence. He argues that the district court abused its discretion in fining him more than the minimum amount, ordering him to reimburse the City of Dodge City and the State of Kansas for money spent in his defense, and denying his motion for a new trial.
The facts of this case are irrelevant to the issues presented and will not be repeated in this opinion.
The first issue Anderson raises is whether the district court abused its discretion in assessing more than the minimum fines for his offenses. According to Anderson, the district court failed to take into account Anderson’s financial resources or the burden that the fines would place on him.
Generally, a sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive. State v. Turner, 252 Kan. 666, 668, 847 P.2d 1286 (1993). However, K.S.A. 21-4607(3) provides that in determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden the fine imposes. In State v. Scherer, 11 Kan. App. 2d 362, 370-372, 721 P.2d 743, rev. denied 240 Kan. 806 (1986), this court found an abuse of discretion when the district court did not consider the ability of the defendant to pay when levying a fine. See State v. Shuster, 17 Kan. App. 2d 8, 10, 829 P.2d 925 (1992).
The State argues that 21-4607 is inapplicable to this case because Anderson was convicted of a violation of a municipal ordinance rather than a state statute. However, in Scherer,, the fine was also levied for a violation of a municipal ordinance. 11 Kan. App. 2d at 368. Furthermore, the municipal ordinance in question mirrors K.S.A. 1990 Supp. 8-1567. Therefore, this argument is without merit.
The question thus becomes whether the district court considered Anderson’s financial resources and the burden the fine would impose. The district court did ask if Anderson was employed. However, the court made no further inquiry into Anderson’s financial status but instead simply imposed the same fine the municipal court had earlier handed down. The court’s failure to consider the factors mandated by K.S.A. 21-4607 constitutes an abuse of discretion, the fine is vacated, and the matter is remanded for reconsideration of the issue in light of Anderson’s financial status.
Anderson, an indigent defendant, was represented by a court-appointed attorney. He argues that the district court erred in ordering him to repay the City and the State of Kansas for money spent on his defense. He argues that the court had no jurisdiction to impose such a sentence and, therefore, the sentence is illegal.
This question involves the interpretation of several statutes. The interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).
K.S.A. 1993 Supp. 21-4610(c) authorizes the district court to require a defendant to reimburse the state general fund for expenditures by the State Board of Indigents’ Defense Services on a defendant’s behalf as a condition of probation. However, K.S.A. 12-4509 does not provide such an authorization for a municipal court. Further, the district court in this case did not require the repayment of attorney fees as a condition of probation but rather simply ordered Anderson to pay the fees in addition to the fine.
It has been stated that a district court judge hearing a case on appeal from a municipal court sits as a municipal court judge. City of Overland Park v. Estell & McDiffett, 225 Kan. 599, 603, 592 P.2d 909 (1979). If a municipal court has no authority to order the repayment of the attorney fees, neither does the district court on an appeal of this nature.
The State argues that the attorney fees were properly awarded as an element of costs. K.S.A. 22-3611 provides that if on appeal to the district court the defendant is convicted, the district court shall impose sentence and render judgment against the defendant for all costs in the case, both in the district court and the court appealed from. However, there is a question whether attorney fees for indigent defendants qualify as costs.
Criminal statutes are required to be construed strictly against the State. State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993). Generally, when attorney fees are to be included as part of costs, the statute authorizing recovery of costs explicitly includes them. See, e.g., K.S.A. 1993 Supp. 61-2709(a) (stating that if an appeal is taken to the district court from the small claims court and is determined adversely to the appellant, “the court shall award to the appellee, as part of the costs, reasonable attorney fees incurred by the appellee on appeal”); K.S.A. 1993 Supp. 60-1610(b)(4) (providing that costs and attorney fees may be awarded in a divorce action); K.S.A. 1993 Supp. 60-2006(a) (providing that in actions brought for the recovery of damages as a result of negligent operation of a motor vehicle, the prevailing party “shall be allowed reasonable attorneys’ fees which shall be taxed as part of the costs of the action”). The fact that the legislature chose not to specifically include attorney fees when referring to costs of the action is an indication that the costs which the defendant is obliged to pay do not include repayment of his attorney fees. This is a matter that needs to be addressed by the legislature. The presiding court should be able to assess attorney fees as part of the costs in this action after making the appropriate inquiry into the defendant’s ability to pay. The repayment of fees should then become a condition of probation.
Because K.S.A. 22-3611 does not explicitly authorize the recovery of attorney fees as part of the costs of the action, the district court was without statutory authority to require Anderson to pay them.
Finally, Anderson argues that the district court erred in denying his motion for a new trial. He contends that he presented new evidence which showed that Officer Bates could not have had his car in sight at all times and could have missed the real perpetrator getting out of the car.
The granting of a new trial is within the discretion of the district court, and appellate review is limited to whether the district court abused its discretion. See Taylor v. State, 251 Kan. 272, 277, 834 P.2d 1325 (1992).
Anderson contends that because the distance between the place where the dumpster was hit and the place where his car ran up onto the curb was actually less than a third of a mile rather than the half-mile as testified to by the State and adopted by the court, Officer Bates could not have turned around and followed the car without losing sight of it briefly. However, Anderson does not explain how that distance relates to the inability of Officer Bates to keep the car in sight. Anderson testified at the trial the patrol car began following his car. Furthermore, the court heard testimony by the officer that he never lost sight of Anderson’s car, saw the car run up on the curb, and saw Anderson, and no one else, get out of the car. Based on these facts, the district court did not abuse its discretion in denying the motion for new trial.
Anderson’s convictions for driving while under the influence and driving while suspended are affirmed. Those portions of the sentence fining Anderson more than the minimum and requiring him to reimburse the City of Dodge City and the State of Kansas for his attorney fees are vacated, and the case is remanded for the court to appropriately consider Anderson’s ability to pay.
Affirmed in part, vacated in part, and remanded. | [
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BRISCOE, C.J.:
Artis Swafford appeals his convictions of two counts of sale of cocaine within 1,000 feet of a school, K.S.A. 65-4127a(c) (now K.S.A. 1993 Supp. 65-4127a[d]).
Lamar Williams approached the police and offered to be a confidential informant. The police provided Williams with an apartment that was wired with video and audio tape recorders. The police had contacted a real estate broker and rented the first apartment that was offered. The apartment was within 1,000 feet of a school. The police officer who rented the apartment testified that he knew there was a school in the area, but he did not know it was within 1,000 feet of the apartment when he rented it.
Williams and Swafford discussed a drug deal at a local club, and Williams agreed to purchase $350 in rock cocaine from Swafford. They went to Williams’ apartment where Williams purchased $150 in rock cocaine from Swafford because that was all that Swafford had. The next day, Swafford came to the apartment and offered to sell Williams more cocaine. Williams bought $350 in rock cocaine. Both transactions were recorded.
Swafford was charged with two counts of sale of cocaine, and when it was discovered the apartment was within 1,000 feet of a school, the complaint was amended.
Knowledge of School within 1,000 feet
Swafford was convicted of class B felonies under K.S.A. 65-4127a(a) and (c). Under 65-4127a(a), possession, offering to sell, sale, or distribution of cocaine and other narcotic drugs is a class C felony if it is a first offense. K.S.A. 65-4127a(c) provides:
“Notwithstanding any other provision of law, upon conviction of any person for a first offense pursuant to subsection (a), such person shall be guilty of a class B felony if such person is over 18 years of age and the substances involved were possessed with intent to sell, sold or offered for sale in or on, or within
I,000 feet of any school property upon which is located a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades 1 through 12.”
Swafford contends one of the essential elements of sale of cocaine within 1,000 feet of a school is knowledge that the place of the sale is within 1,000 feet of a school, and that the jury instruction defining tibe crime was incorrect because it omitted that element. Although Swafford did not object to the instruction given, under K.S.A. 22-3414(3), a contemporaneous objection is not required to preserve the issue for appeal if the instructions are “clearly erroneous.” See State v. Deavers, 252 Kan. 149, 164, 843 P.2d 695 (1992), cert. denied 125 L. Ed. 2d 676 (1993). Omission of an essential element of the crime from the instruction would be clearly erroneous.
Whether knowledge of the proximity of a school is an essential element of 65-4127a(c) is an issue of statutory construction, which is a question of law on which a reviewing court is not bound by the decision of the lower court. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). The issue is not whether the statute creates an absolute liability offense with no intent or knowledge element; 65-4127a(c) applies only when all elements of the statute, including an intent element, have been proved. See State v. Josenberger, 17 Kan. App. 2d 167, 172-73, 836 P.2d II, rev. denied 251 Kan. 941 (1992). Consequently, the general rule that an intent element will be read into all crimes unless the legislature clearly intended otherwise (see State v. Jones, 242 Kan. 385, 391-92, 748 P.2d 839 [1988]) is inapplicable. The issue is whether the legislature intended to require proof of knowledge of the proximity of a school in addition to proof of intent to sell cocaine to establish a violation of 65-4127a(c).
In State v. Robinson, 239 Kan. 269, 271, 718 P.2d 1313 (1986), the court stated:
“Whether or not criminal intent or knowledge is an element of a statutory crime depends on the will of the legislature. Legislative intent is a matter of statutory construction, to be determined in a given case from consideration of the language of the statute in connection with the subject matter of the prohibition, the statute’s manifest purpose and design, and fhe consequences of the several constructions to which the statute may be susceptible. The omission of the word ‘knowingly’ from the statute defining fhe crime is not conclusive as to whether or not guilty knowledge is an essential element of the crime.”
Here, the statute does not expressly require proof of knowledge of fhe proximity of a school. The substance of ihe statute and the legislative history cited by Swafford show that 65-4127a(c) was modeled after similar statutes enacted in many other jurisdictions. The original model is the federal “schoolyard statute,” 21 U.S.C. § 860 (1990) (formerly 21 U.S.C. § 845a [1988]). It provides that anyone who violates 21 U.S.C. § 841(a)(1) (1988) by distributing, possessing with intent to distribute, or manufacturing a controlled substance in, on, or within 1,000 feet of school property is subject to imprisonment for up to twice that authorized for a violation of 21 U.S.C. § 841(a)(1). It is similar in language and structure to 65-4127a(c).
In United States v. Falu, 776 F.2d 46 (2d Cir. 1985), the court held that the schoolyard statute did not require proof that a drug trafficker had knowledge of the proximity of a school and concluded that a knowledge requirement would be contrary to the purpose of the statute disclosed by the legislative history. The court held that “a requirement that the dealer know that a sale is geographically within the prohibited area would undercut this unambiguous legislative design.” The court concluded that although “some schools are not clearly recognizable as such from all points within the 1,000-foot radius, Congress evidently intended that dealers . . . bear the burden of ascertaining where schools are located and removing their operations from those areas or else face enhanced penalties.” 776 F.2d at 50.
The legislative history cited by Swafford reveals that, like the federal schoolyard statute on which it was modeled, 65-4127a(c) was intended to create drug-free school zones. It was designed to protect young people from drug use and the violence and other negative influences that accompany drug dealing. Children are exposed to these negative influences when drug deals are conducted near schools regardless of whether the dealers know they are within 1,000 feet of a school.
Requiring proof that Swafford knew a school was -within 1,000 feet could impose an onerous burden on police and prosecutors, which would be contrary to the clear purpose of the statute. Swafford’s knowledge of the proximity of a school is not an essential element of the crime of selling cocaine within 1,000 feet of a school under 65-4127a(c).
Entrapment
Swafford contends that by setting up the drug deals within 1,000 feet of a school, the police engaged in outrageous conduct that entrapped him into committing more serious class B felonies. He argues tibe police conduct was so outrageous that it constituted entrapment as a matter of law and that his convictions should be reclassified as class C felonies.
The defense of outrageous government conduct is an offshoot of entrapment and is based on an intolerable degree of governmental participation in the criminal enterprise. Governmental participation in a criminal enterprise reaches an intolerable degree when it constitutes a denial of fundamental fairness “shocking to the universal sense of justice” contrary to the Due Process Clause. State v. Van Winkle, 254 Kan. 214, 216-17, 864 P.2d 729 (1993), cert. denied 114 S. Ct. 2168 (1994). Whether the government’s conduct is sufficiently outrageous is a question of law and depends on four factors: the type of criminal activity involved, whether the activity is preexisting or instigated by the government, whether the government directs the activity or merely participates in it, and the causal link between the governmental conduct and the defendant’s acts. A defendant’s predisposition to commit the crime bars the use of the outrageous government conduct defense. 254 Kan. at 219-20.
Swafford does not argue that the police instigated the sales of cocaine or that he lacked a predisposition to sell cocaine. He argues only that the police instigated or caused the sales to take place near a school and that he lacked a predisposition to sell cocaine near a school. Drug crimes require that the police be allowed flexibility in tactics. The use of informants to infiltrate drug operations is a recognized and permissible tactic, even when the informant engages in some criminal activity or supplies something of value to the criminal enterprise, such as an essential ingredient for the manufacture of drugs. Van Winkle, 254 Kan. at 220. The mere fact that the government created one of the essential elements of the crime by setting up drug deals within 1,000 feet of a school does not by itself constitute outrageous conduct.
Case law suggests this could be outrageous conduct only if the government acted with the sole or principal purpose of increasing the severity of the crime. In U.S. v. Swanson, 952 F.2d 175 (8th Cir. 1991), cert. denied 120 L. Ed. 2d 914 (1992), the defendant argued he was entrapped in violation of his due process rights because an undercover officer set up heroin deals at an informant’s house, which was within 1,000 feet of a school. Although the defendant was precluded from raising the defense on appeal because he had not raised it below, the court stated that even if the defendant had raised the defense, “it does not appear that McCabe’s home was selected as the site of the heroin deals in order to be within 1,000 feet of a school. Instead, this site was chosen because McCabe was the link between Swanson and the undercover officer.” 952 F.2d at 177.
Here, although the police set up the drug deals within 1,000 feet of a school, there was no evidence that their purpose was to increase the severity of the crimes. It was uncontroverted that they did not know the apartment was within 1,000 feet of a school until after the transactions were completed and the defendant was arrested. The police action did not constitute outrageous conduct or entrapment as a matter of law.
Refusal to grant mistrial
Swafford contends the trial court erred in refusing to grant a mistrial after a witness referred to a murder with which Swafford had been charged. In the alternative, he contends the trial court erred in refusing to admonish the witness to refrain from referring to the murder.
Williams testified on cross-examination that the police had agreed to pay him more money for arranging big drug deals. When counsel asked what would be a big drug deal, Williams replied there had been no big drug deals because the undercover operation was shut down “after . . . the murder took place.” Counsel requested a mistrial, which the trial court denied on the ground that the witness’ answer was not “inappropriately non-responsive.” In response to the first question asked after the denial of the mistrial, the witness again said that the murder prevented any big drug deals, but there was no objection to this answer. The witness referred to the murder a third time in response to a question about whether he had any further conversations with Swafford: “I talked to him . . . about the day after the murder, the same day the murder took place I talked to him about that.” Counsel requested that the court admonish the witness to stop referring to the murder. The court denied the request, noting that the witness was using the murder as a bench mark to remember when he had conversations with Swafford, that the witness did not implicate Swafford in the murder, and that counsel had invited the responses.
The decision to declare a mistrial is left to the discretion of the trial court. The defendant has the burden of showing substantial prejudice from failure to declare a mistrial before an appellate court will find an abuse of discretion by the trial court. State v. Grissom, 251 Kan. 851, 931, 840 P.2d 1142 (1992). Swafford has not shown substantial prejudice. As the trial court noted, the witness’ statements did not implicate Swafford. They referred only to the fact of the murder. The references to the murder were not so prejudicial that it was an abuse of discretion to deny a mistrial.
Moreover, a litigant cannot invite error and then complain of the trial court’s action on appeal. See State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989). The first two references to the murder, although perhaps not invited by the wording of coun sel’s question, should have come as no surprise because Williams gave the same answer to the same question at the preliminary hearing. When asked whether he arranged any big drug deals for the police, Williams answered that none were carried out because “the homicide took place.” The witness’ final reference to the murder was invited by defense counsel’s question about further conversations with Swafford after the two drug deals. In response to a similar question by the prosecution at the preliminary hearing, Williams had testified that Swafford had admitted his involvement in the murder in a conversation shortly after the second drug deal. Any question about this conversation would raise Swafford’s involvement in the murder.
Nor was the trial court’s refusal to admonish the witness to stop referring to the murder reversible error. A trial court has broad discretion to control the examination of witnesses, and reviewing courts will not interfere unless discretion has been abused. See State v. Mitchell, 234 Kan. 185, 188, 672 P.2d 1 (1983). Defense counsel did not disagree when the court stated its assumption that Swafford was finished with the line of questioning that elicited the references to the murder. An admonition would have served no purpose if that line of questioning was concluded. The trial court’s refusal to admonish the witness did not impair counsel’s ability to inquire about the relationship between Swafford and Williams. Any error was harmless.
Cross-examination of Informant
Swafford contends the trial court improperly limited cross-examination of the informant concerning their relationship, thereby impairing his ability to establish entrapment. The trial court has broad discretion in controlling cross-examination, and Swafford has not shown that the trial court’s limitation of cross-examination was an abuse of discretion. See State v. Harmon, 254 Kan. 87, 95, 865 P.2d 1011 (1993).
The court cut off cross-examination only when counsel asked about conversations that occurred after the two drug deals. These conversations could not have been relevant to the entrapment defense and would almost certainly have raised Swafford’s in volvement in the murder. The record reveals that Swafford was able to inquire into Williams’ relationship with him, both on cross-examination and later by calling Williams as a defense witness. Defense counsel examined Williams about when he first met Swafford, how well he knew him, how often they met, where they met, what they did together, and what they talked about.
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Anderson, J.:
Brian D. Bennett appeals his conviction of unlawful possession of a firearm. He argues the trial court erred in admitting a pistol into evidence. He also challenges the sufficiency of the evidence supporting his conviction and alleges the trial court erred in denying his motion for judgment of acquittal'.
On February 26, 1993, Bennett drove to Washburn Rural High School to retrieve his friend, Andrew Wolfe. Bennett had permission from Wolfe’s mother to pick Wolfe up after a basketball game.
At approximately 9:45 p.m., Sergeant Paul Fisher and Corporal Mike Ramirez, of the Shawnee County Sheriff’s Department, were patrolling the high school parking lot when they stopped a vehicle for erratic driving, intending to direct the driver to leave the lot. When the officers activated the emergency light mounted on the dashboard of their unmarked police car, the suspect vehicle immediately came to a stop. Ramirez approached the vehicle from the driver’s side, and Fisher approached from the passenger side. Ramirez tapped on the driver’s window twice, and the driver finally responded. The driver rolled down his window and held out a mini-cassette recorder, indicating to Ramirez that he was recording the conversation because the sheriff’s department had “hassled” him in the past about another incident.
Ramirez testified that he was speaking with the driver when Fisher opened the passenger side door, “lunged” into the vehicle, and emerged with a .9 mm handgun from inside the vehicle. Ramirez then Opened the driver’s door and requested that the driver step from the vehicle.
Fisher testified the passenger side window was tinted and he could not see into the car. He could tell the car contained a passenger in addition to the driver but could not see who the passenger was. Fisher indicated that he opened the passenger door of the vehicle only after the driver had refused to exit the vehicle at the request of Ramirez. The interior light of the vehicle came on when the door was opened; within Fisher’s plain view was a .9 mm automatic gun lying on top of the console. Fisher admitted he had no reason to believe that a crime was being committed at the time he opened the passenger side door. Ramirez then arrested the driver, Brian D. Bennett, for carrying the weapon on the school grounds.
Bennett was charged with and found guilty of criminal possession of a firearm in violation of K.S.A. 1992 Supp. 21-4204(1) (d). After Bennett’s conviction, defense counsel argued the gun was obtained as a fruit of an unreasonable search and seizure. In accordance with the arguments made by the State in response to Bennett’s motion to suppress, the court ruled that “the issue of suppression has not been brought before this Court as required. So I — I don’t believe it’s appropriate to raise a suppression issue at this time.” Bennett also made a motion for an acquittal, which the court denied.
Bennett testified the gun belonged to his brother. He said he borrowed it for target practice with his brother’s permission. The trial court found Bennett guilty of unlawful possession of a firearm. The trial court suspended imposition of sentence and placed Bennett on probation for two years. Bennett appeals.
. Motions to suppress evidence are governed by K.S.A. 22-3216(3), which provides in part: “The motion [to suppress evidence] shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.” This court has specifically ruled that while the motion must ordinarily be filed before trial, “the trial court does have discretion to entertain a motion for suppression after the commencement of the trial.” State v. Wickliffe, 16 Kan. App. 2d 424, 428, 826 P.2d 522 (1992).
In Wickliffe, the trial court mistakenly believed it had no choice but to deny the motion since the defendant failed to make the motion in writing. We held the trial court erred in failing to exercise its discretion to determine whether the defendant’s failure to raise the motion to suppress prior to trial was excusable. However, the Wickliffe court went on to determine that the error was harmless because evidence of the car owner’s wallet uncovered from the vehicle was cumulative in light of the other evidence presented to support the car theft conviction. 16 Kan. App. 2d at 430-31.
The only evidence of Bennett’s unlawful possession of a firearm is the gun itself. Unlike the wallet in Wicklijfe, if the gun was suppressed, the State would not have any evidence to support the conviction. Therefore, if the trial court’s discretion had been invoked, its failure to exercise that discretion and consider whether Bennett’s failure to raise the motion to suppress prior to trial was excusable cannot be considered harmless error.
However, Wicklijfe suggests that a trial court’s discretion to hear the motion is invoked only after the defendant claims that he did not file a written pretrial motion to suppress because he was not aware of the grounds for the motion prior to trial. Wickliffe, 16 Kan. App. 2d 428. Bennett never argued that he was unaware of the grounds supporting his motion to suppress prior to trial. He failed to file a written pretrial motion to suppress and failed to argue before the trial court that his failure to file the motion was otherwise excusable. The trial court properly declined to hear his motion to suppress the firearm.
Bennett next argues the trial court erred in denying his motion for judgment of acquittal. He contends the State failed to prove an element of criminal possession of a firearm — that he was not a law enforcement officer at the time of the offense. The State maintains that possession of a firearm by a police officer is an exception to the statute and is, in essence, a defense for which Bennett shoulders the burden of proof.
In denying a motion for judgment of acquittal, the trial court must determine that the evidence is sufficient to support a rational factfinder rendering a guilty verdict beyond a reasonable doubt. If there is sufficient evidence, this court must affirm the ruling of the trial court. K.S.A. 1992 Supp. 21-4204(l)(d) defines misdemeanor criminal possession of a firearm as “possession of any firearm by any person, other than a law enforcement officer, in or on any school property.” The State presented no evidence that Bennett was not a law enforcement officer. If the fact that Bennett was not a law enforcement officer is an element of the crime, the trial court should have granted an acquittal.
We have not addressed whether not being a law enforcement officer is an element of K.S.A. 1992 Supp. 21-4204(l)(d). However, Kansas law is clear that
“if a criminal statute prohibits certain conduct, but contains an exception permitting the conduct if performed under certain conditions or by certain classes of persons, the prosecution does not have to include a negative averment of the matter of the exception in the information, unless tire ‘matter enters into and becomes a material part of the description of the offense.’ ” State v. Shouse, 8 Kan. App. 2d 483, 485, 660 P.2d 970 (1983).
In State v. Brothers, 212 Kan. 187, 189-90, 510 P.2d 608 (1973), our Supreme Court listed prior Kansas cases which have adhered to this rule. See State v. Braun, 209 Kan. 181, 189-90, 495 P.2d 1000, cert. denied 409 U.S. 991 (1972) (accused has burden of proving that he or she is within exception or exemption so long as exception or exemption is not part of the description of the offense); State v. Perello, 102 Kan. 695, 171 Pac. 630 (1918) (where unlawful to possess intoxicating liquor except for druggists or pharmacists, State not required to allege that defendant was not a druggist or pharmacist).
In State v. Jamieson, 206 Kan. 491, 492, 480 P.2d 87 (1971), the Kansas Supreme Court considered a similar question with respect to the following language from our abortion statute:
“ ‘Every physician or other person who shall willfully administer to any pregnant woman any medicine, drug, or substance whatsoever, or shall use or employ any instrument or means whatsoever, with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman . . . shall upon conviction be adjudged guilty of a misdemeanor, and punished by imprisonment.’ ”
The Jamieson court ruled that the exception set forth in the Kansas abortion statute had to be negatively averred and proven because the exception constituted an integral part of the offense defined by that statute. 206 Kan. at 495.
The present case is more similar to the Shouse line of cases than to Jamieson. The subject crime in the instant case is criminal possession of a firearm. If a person possessing a gun on school property is a police officer, that officer is excepted from prosecution. A persons lack of police officer status is not integral to the operation of this statute. If the perpetrator is a police officer, he or she is in the best position to prove this status. Requiring a defendant to demonstrate that he or she is a police officer brings the exception into play only in cases where it is a bona fide issue. Requiring potential perpetrators to prove their status as police officers is consistent with Kansas case law and public policy, and it promotes judicial efficiency. The trial court did not err in denying Bennett’s motion for a judgment of acquittal.
The unlawful possession of a firearm statute provides for an exception to its prohibition on gun possession when the firearm is “secured in a motor vehicle by a parent, guardian, custodian or someone authorized to act in such person’s behalf who is delivering or collecting a student.” K.S.A. 1992 Supp. 21-4204(3)(c). Bennett contends that, because Wolfe’s mother directed him to collect Wolfe, the statutory exception applies and he could not be found guilty of unlawful possession of a firearm under the circumstances.
The State maintains the exception is inapplicable under the case law and reasoning cited above. However, those cases merely relieve the State from having to prove that an exception is inapplicable to a defendánt; the cases require the defendant to raise the exception as an affirmative defense. Bennett presented evidence to show that Wolfe’s mother gave him authorization to retrieve her son from school. Resolution of this issue centers on an interpretation of the exception. Statutory interpretation is a question of law, State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993), over which this court’s review is unlimited. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The trial court held that Bennett’s authorization from Wolfe’s mother was insufficient as a matter of law. The trial court concluded that for the exception to apply, Bennett would need authority not only to deliver or collect a student, but to act as a parent, custodian, or guardian.
This court has not previously interpreted K.S.A. 1992 Supp. 21-4204(3)(c). “When a statute is plain and unambiguous, the court must givé effect to the intention of the legislature as ex pressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). Under the plain meaning approach to this statute, Bennett’s position seems to have merit.
The trial court’s ruling tortures the statutory language to conclude that in order for an individual to come within die exception, he or she must be authorized to act as parent, guardian, or custodian. The plain meaning of the language of the statute requires only that the individual be “someone authorized to act in such person’s behalf who is delivering or collecting a student.” (Emphasis added.) K.S.A. 1992 Supp. 21-4204(3)(c). Thus, it would seem that Bennett would come within the exception as he was on the school grounds to pick up Wolfe on die authority of Wolfe’s mother.
The issue is not so easily resolved, however, as the exception also requires that the firearm be “secured in a motor vehicle.” (Emphasis added.) K.S.A. 1992 Supp. 21-4204(3)(c). The statute does not define this phrase.
When ascertainable, intent of the legislature governs judicial interpretation of statutes, and the courts should give words in common usage their natural and ordinary meanings. Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 682, 847 P.2d 1292 (1993). The verb secure means “to make fast: tie down: SEAL.” Webster’s Third New International Dictionary 2052 (1986). “[Possession of a firearm secured in a motor vehicle,” K.S.A. 1992 Supp. 21-4204, connotes a more restricted possession than if the statute were to read “possession of a firearm inside a vehicle.” The language suggests that the legislature intended greater effort by the possessor of the firearm to ensure that it would remain in the vehicle in a safe condition before an individual would be construed to be within the exception.
Although Kansas appellate courts have not interpreted K.S.A. 1992 Supp. 21-4204(3)(c), Iowa prohibits persons from “knowingly carr[ying] or otherwise transporting] in a vehicle a pistol or revolver.” State v. Jones, 524 N.W.2d 172, 173 (Iowa 1994). In Jones, the Iowa Supreme Court construed a statutory exception for “[a] person who for any lawful purpose carries or transports an unloaded pistol or revolver in a vehicle inside a closed and fastened container.” 524 N.W.2d at 173. The Jones court concluded that the defendant, who had been arrested for carrying his handgun in a zippered pouch, fell within the exception and was, therefore, exempt from the prohibition. 524 N.W.2d at 173-75.
Maryland’s prohibition against carrying handguns on school property does not have an exception like K.S.A. 1992 Supp. 21-4204(3)(c). See Md. Crimes and Punishments Code Ann. § 36A (1992). However, in its provision on the prohibition of transporting firearms, the Maryland Legislature has enumerated certain exceptions when an owner of firearms is traveling to and from specified locations. Under these exceptions, at all times the “handgun shall be unloaded and carried in an enclosed case or enclosed holster.” Md. Crimes and Punishments Code Ann. § 36B(c)(3). See Jordan v. State, 24 Md. App. 267, 274, 330 A.2d 496 (1975) (while statutoiy language does not necessarily require transportation of the firearm in a customary gun case, it does require more than an unfastened sack).
The Florida statute is somewhat more analogous to our statute. It provides: “[I]t is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes: ... A person traveling by private conveyance when the weapon is securely encased.” Fla. Stat. § 790.25(3)(1) (1994 Supp.). The Florida appellate courts have interpreted this provision on numerous occasions. See State v. Hanigan, 312 So. 2d 785, 786, 788 (Fla. Dist. App. 1975) (exception where defendant had revolver in holster with a leather strap snapped over the hammer and gun was underneath driver’s seat); Cates v. State, 408 So. 2d 797, 798-99 (Fla. Dist. App. 1982) (guilty verdict for carrying concealed weapon upheld where handgun was kept in the console compartment between front seats and officers had testified that the lid was unlocked and left partially open); State v. Swoveland, 413 So. 2d 166, 167 (Fla. Dist. App. 1982) (dismissal of complaint reversed; question of fact existed whether leather strap of holster was snapped across the hammer, and it was improper for court to exempt defendant under Hanigan as a matter of law).
Faced with the difficulty of precisely defining the term “securely encased” the Florida courts implored the legislature to define the term. In its 1982 session, the legislature added a definition. Fla. Stat. § 790.001(16) (1993); see also Alexander v. State, 477 So. 2d 557-58 (Fla. 1985) (applying new definition).
Two other states have statutory exceptions to general prohibitions on the transportation of firearms. See Cal. Penal Code § 12026.2 (a) and (d) (West 1992) (providing for certain exceptions for prohibition on transportation of guns, provided the firearm is kept in a “locked container,” i.e., “a secure container which is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device”); and Mich. Comp. Laws § 750.231a (1991) (person meeting various exceptions to prohibition on carrying/transportation of firearm must still carry firearm in wrap or a container which is in the trunk or otherwise not readily accessible). Neither of these statutes has been construed by the courts of those states.
Obviously, the statutes discussed above are distinguishable from the Kansas statute subject to this appeal. However, the cases and statutes do establish a pattern among the states whereby individuals are permitted to carry their firearms only where the possession of them is somehow restricted to minimize the dangers of transportation. The Kansas Legislature has outlined certain narrow exceptions to the general prohibition against carrying firearms on school grounds. In each of the out-of-state examples, the primary purpose behind authorizing certain persons to carry firearms seems to be to permit their safe transportation. It is reasonable to expect individuals transporting a firearm to sacrifice certain aspects of the firearm’s immediate use, i.e., place it in a zippered pouch, or in a strapped holster under the seat, etc. Keeping the guns encased or enclosed ensures that their transportation is permitted without encouraging immediate use.
In our situation, if the true purpose of an individual (parent, guardian, or designee) is to pick up a student from a school function, then it is not unreasonable for the person to have his or her firearm “secured” in a gun rack, gun case, locked trunk, or something of that nature. The less secured the weapon (for example, if the gun is out on the seat or on the dashboard) the more likely that weapon is carried for the purpose of protection or intimidation. This the legislature absolutely intends to proscribe.
Reading the exception to permit the carrying of a handgun on school property as long as it is inside a motor vehicle would also seem to undermine the purpose of the prohibition of carrying a concealed weapon. See K.S.A. 21-4201(l)(d) (“Unlawful use of weapons is knowingly . . . carrying any pistol, revolver or other firearm concealed on one’s person except when on the person’s land or in the person’s abode or fixed place of business”). In State v. Chiles, 226 Kan. 140, 142-43, 595 P.2d 1130 (1979), our Supreme Court stated that the prohibition against carrying concealed weapons is “aimed at keeping the public from going about secretly armed. ... If a man knows another man is armed he would behave differently in the event of an affray than if he did not.”
The legislature has acknowledged that there is greater need to deter individuals from carrying guns onto school property than in other public places. If the gun were placed on the seat of a vehicle, it would seemingly fall outside the concealed weapons prohibition, which applies only if the gun is on one’s person. K.S.A. 1992 Supp. 21-4204 seems slightly broader, because it restricts possession and not merely carrying weapons on the person. In reading these sections together, the legislature’s use of the phrase “secured in a motor vehicle” is significant because it defines a limited type of possession which is excepted from the general proscription from carrying firearms on school grounds. In the other provisions of K.S.A. 1992 Supp. 21-4204, the legislature refers merely to possession generally.
Legislative research seems to corroborate this court’s understanding of the impetus behind the legislature’s enactment of the exception. The language at issue was added in 1991. However, early versions of the statute (HB 2365) were introduced to the House Judiciary Committee without an exception for “a firearm secured in a motor vehicle.” The legislative library contains letters in favor of amendments to the bill as first introduced. Included is a letter from the Kansas Peace Officers’ Association (KPOA) in which the members express concern over the scope of the bill’s prohibition. In that letter, the KPOA specifically inquires of the legislature, “What is the definition of possession [?] Would this include firearms in a vehicle? On a gunrack? Or does the firearm need to be on the person?” Thereafter, certain amendments were considered, and, ultimately, the bill was passed almost exactly as it appears in our statutes.
It seems clear that the amendment was enacted as a response to specific inquiries made by members of the public. Reading the statutory language in light of those inquiries and public concerns clarifies the intent of the legislature. While other language might more clearly specify the type of possession which is authorized under the exception, greater specificity is not required. The language of the Florida statute, “securely encased,” is more easily understood. However, even with that language, Florida courts have struggled over a precise definition. More importantly, such language might be seen to preclude one of the very situations which the bill was seemingly designed to permit, the transportation of a firearm in a gunrack. Use of language which encompasses a broad range of activities or situations inherently sacrifices clarity. While the term secured may be subject to multiple interpretations, when considered in light of the legislative history and the case law cited above, it seems clear that it was utilized to connote something more than mere presence of a firearm in a vehicle. We must conclude that as a matter of law, a gun which is left sitting open and accessible, as on the dashboard or seat of a car, is not “secured inside a motor vehicle” so as to come within the statutory exception.
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Toburen, J.:
Vickie Scruggs appeals the trial court’s judgment determining current child support owed by Steven Chandlee and the amount to be withheld under income withholding to satisfy his past due support obligation.
Vickie and Steven are the natural parents of one minor child, John. John lives with Vickie. Steven has two other children from his current marriage who live with him. Steven also pays child support for a fourth child, Amanda, who has always lived with her mother.
Vickie sought an increase in child support. The trial court adjusted Steven s gross income at Line C.2. of the child support worksheet in an amount equal to Steven’s court-ordered child support payments for Amanda. See Kansas Child Support Guidelines (1994 Kan. Ct. R. Annot. 91). The trial court also calculated Steven’s child support obligation for John using the four-child families support schedule of the guidelines (1994 Kan. Ct. R. An-not. 113) rather than the three-child schedule (1994 Kan. Ct. R. Annot. 111)..Steven’s adjusted child support obligation was thus reduced.
Both parties refer to the multiple-family adjustment provisions of the guidelines. Vickie argues that the three-child families support schedule should be used because the total number of Steven’s children who reside with either Steven or Vickie is three. Steven argues that the four-child schedule is appropriate because he supports four children.
Interpretation of the guidelines is a question of law; therefore, this court’s standard of review is de novo. In re Marriage of Hansen, 18 Kan. App. 2d 712, 716, 858 P.2d 1240 (1993).
Both parties cite the only Kansas case which even indirectly addresses the multiple-family adjustment. In re Marriage of Hansen, 18 Kan. App. 2d at 716. Hansen does not address the situation where a noncustodial parent supports both children who live with him and children who do not.
Steven notes that emphasis is given throughout the guidelines and the Hansen opinion to consideration of the total number of children a parent is obligated to support. That language may be read in support of either party to this action. The four children Steven must support are considered by allowing him the gross income adjustment for his nonresidential child and using the three-child schedule for the other three children.
Administrative Order No. 83 (1993 Kan. Ct. R. Annot. 71) promulgated the child support guidelines in effect when this case was decided. Three sections of the guidelines refer to the multiple-family adjustment. Section II.K. defines the term, section IV.E. contains instructions on its application, and section V.D.3. contains examples of child support computations. Effective August 1, 1994, Administrative Order No. 90 (1994 Kan. Ct. R. An-not. 83) revised and superseded the guidelines promulgated by Administrative Order No. 83. The definition and explanation section found at section II.K. contains the only revision pertinent to this case.
The examples found at section V.D.3. do not address the facts presented here. The gross income adjustment for child support paid for another nonresidential child under another court order is not considered in those examples, and the examples do not indicate where the children from the subsequent marriages reside.
Section IV.E. of Administrative Order No. 83 provides instruction for the application of the multiple-family adjustment. “For the Multiple-Family Adjustment, if tire noncustodial parent has children by another relationship who reside with him/her, the Child Support Schedule representing the total number of children that the noncustodial parent is obligated to support shall be used in determining the basic support obligation.” (1993 Kan. Ct. R. Annot. 76.)
The definitions section of Administrative Order No. 83, section II.K. provides as follows: “The Multiple-Family Adjustment is used to adjust the noncustodial parent’s child support obligation when the noncustodial parent has legal financial responsibility for the support of other children besides the children shared with the custodial parent.” (1993 Kan. Ct. R. Annot. 75).
That wording was changed by Administrative Order No. 90, and is now found at section ILL. of that order. The word “besides” was removed and language substituted to read as follows: “The Multiple-Family Adjustment is used to adjust the noncus todial parent’s child support obligation when the noncustodial parent has legal financial responsibility for the support of other children who reside with the noncustodial parent in addition to the children shared with the custodial parent.” (Emphasis added.) (1994 Kan. Ct. R. Annot. 86).
Instruction with respect to preexisting court-ordered child support payment obligations in other cases is found at section V.C.2. “Pre-existing child support obligations in other cases shall be deducted to the extent that these support obligations are actually paid. These amounts are entered on Line C.2. [of the Child-Support Worksheet].” (Emphasis added.) (1993 Kan. Ct. R. Annot. 77).
The multiple-family adjustment definition, instructions, and examples found in the guidelines contemplate situations where noncustodial parents have children from another relationship who reside in the home of the noncustodial parent. The application instruction makes reference to children who reside with the noncustodial parent. The guidelines, as amended, instruct that the multiple-family adjustment is used to adjust the noncustodial parent’s support obligation when that parent has responsibility for the support of “other children who reside with the noncustodial parent.” Section V.C.2. instructs that existing child support obligations in “other cases” are to be deducted as adjustments to gross income. The construction urged by Steven would grant double credit to noncustodial parents, first by adjusting the domestic gross income in an amount equal to child support payments made and then by applying the schedule that would include the child for whom that adjustment was made.
We conclude that the multiple-family adjustment provisions of the child support guidelines are to be applied to the noncustodial parent’s children who reside in the noncustodial parent’s household. In choosing the correct child support schedule, a noncustodial parent’s other children who reside with the noncustodial parent are added to the children of the parties whose support obligations are at issue. Adjustments for child support payments for children who do not reside with the noncustodial parent are to be made at Line C.2. of the child support worksheet pursuant to section V.C.2. of the guidelines.
In this instance, Steven’s two children who reside with him and the child at issue, John, are counted. The three-child schedule is to be used. Child support payments Steven makes under court order in another case for his child who does not reside with him are to be considered as an adjustment to Steven’s gross income under Line C.2. of the worksheet.
This construction is consistent with Hansen. That case involved a divided custody situation where the parties had two children. Each party had custody of one child. Hansen instructs that the two-child schedule is to be used in determining child support. Divided custody Example 5 referenced in Hansen contemplates that the child of the second marriage is a resident of the household of one of the parties. In the present case, counting Steven’s two children who reside with him, and his son John who resides with Vickie, the schedule to be used is the three-child schedule. Preexisting support obligations in other cases, where one of the parties has been ordered to support a nonresidential child from another relationship, would be considered and adjusted at Line C.2. of the worksheet.
Vickie next contends the trial court abused its discretion in refusing to order more than $150 per month income withholding to be applied toward satisfaction of child support arrearages.
In her amended motion to increase child support and for related relief, Vickie did not specify an amount to be withheld to satisfy arrearages. When the court allowed $150 per month, the same amount that was being withheld under previous agreement of the parties, Vickie filed a motion to alter or amend the judgment. The trial court denied the motion on the basis that Vickie had not requested an increase.
Our standard of review is whether the trial court abused its discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. That is, discretion is abused only where no reasonable person would take the view adopted by the trial court. In re Marriage of Case, 19 Kan. App. 2d 883, 889, 879 P.2d 632 (1994).
K.S.A. 1994 Supp. 23-4,111(b) provides that the district court may modify an income withholding order on “request of the ob ligee.” Vickie’s argument that her motion to alter or amend the judgment constituted a request to increase the amount is not well taken. The purpose of the motion to alter or amend the judgment is to allow the trial court the opportunity to correct errors. Hansen, 18 Kan. App. 2d at 714. The trial court did not err. Vickie did not request a withholding increase, and there was no abuse of discretion in failing to order what was not requested. Vickie’s remedy was and still is to file another motion with the trial court.
Reversed and remanded for consideration and application of the three-child families support schedule consistent with this opinion. | [
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RULON, J.:
Plaintiff, Susanne Gehring, appeals from the judgment of the district court which dismissed her action filed against the defendant, the Kansas Department of Transportation (KDOT), because plaintiffs claim was barred by the statute of limitations.
We must decide if the district court erred in concluding a two-year statute of limitations applied to plaintiffs cause of action. We affirm.
The facts of this case are not disputed and are briefly stated as follows:
On August 2, 1991, plaintiff was injured in a one-car collision on K-181 Highway. At the time of the collision, J.H. Shears’ Sons, Inc., pursuant to a contract with KDOT, was resurfacing the section of the highway where the collision occurred.
On August 30, 1993, plaintiff filed a negligence action against KDOT, alleging a substantial drop-off created during the resurfacing caused the collision. KDOT filed a motion to dismiss, arguing the claim was barred by a two-year statute of limitations. Plaintiff opposed the motion, arguing a three-year statute of limitations controlled. The district court granted the motion to dismiss after concluding that the legislature intended the underlying cause of action to be the deciding factor in determining the applicable statute of limitations. In this instance, the district court concluded plaintiff’s action was controlled by the provisions of K.S.A. 1993 Supp. 60-513(a)(4).
Plaintiff argues the district court erred in concluding the two-year statute of limitations applied to her case. Plaintiff argues the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., created liability for governmental entities. According to plaintiff, her claim is an action based upon a liability created by statute. Consequently, plaintiff asserts the three-year statute of limitations under K.S.A. 60-512(2) applies to this action.
We conclude that under the KTCA, a governmental entity is hable for damages caused by the negligent or wrongful acts or omissions of its employees acting within the scope of their employment “where the governmental entity, if a private person, would be liable under the laws of this state.” K.S.A. 75-6103(a). The Code of Civil Procedure is applicable to actions within the scope of the Act. K.S.A. 75-6103(b).
Under the Kansas Code of Civil Procedure, “[a]n action for injury to the rights of another, not arising on contract,” shall be brought within two years. K.S.A. 1993 Supp. 60-513(a)(4). On the other hand, “[a]n action upon a liability created by statute” shall be brought within three years. K.S.A. 60-512(2).
The law in Kansas is well settled that interpretation of statutes is a question of law and this court’s review of questions of law is unlimited. State v. Scherzer, 254 Kan. 926, 933-34, 869 P.2d 729 (1994). The overriding principle of statutory construction is that the intent of the legislature governs if that intent can be ascertained from the plain language of the statute. When the statute is plain and unambiguous, the court must give effect to the intent of the legislature. If, however, the interpretation of one section of an act based on its plain meaning would contravene the purpose of the legislature, the entire act should be construed according to its spirit and reason. When an act is clear on its face, there is no need to consult legislative history or extrinsic materials. 254 Kan. at 933-34.
The history surrounding the enactment of the KTCA does not clearly reveal the legislature’s intent as to the applicable statute of limitations for claims brought under the KTCA. All discussions regarding a limitations period, however, referred to a two-year period. See Proposal No. 11 — Tort Claims Act for Local Government, Report on Kansas Legislative Interim Studies to the 1979 Legislature-Special Committees, 269, 276 (1978) (Kansas Trial Lawyers Association suggested two-year limitations period for filing a claim, as found in the Federal Tort Claims Act); Kansas Tort Liability Act Proposed, 65 Kansas Gov’t J., 36, 37 (January 1979) (attachment to Minutes of the Senate Judiciary Committee, January 18, 1979) (injured party would have two years to file an action for damages under KTCA); League of Kansas Municipalities Special City Legislative Bulletin No. 12, p. 3 (1979) (attachment to Minutes of the House Judiciary Committee, March 20, 1979) (injured party presumably would have up to two years to file action for damages under the Code of Civil Procedure).
As noted above, instead of specifying which limitations period applied to claims brought under the Act, the final version of the statute adopted by the legislature simply states that all claims are subject to die Kansas Code of Civil Procedure. The resulting ambiguity was summarized as follows:
“Most of those who were involved in the shaping of the Act assumed that the applicable tort statutes of limitations would be applicable. For example, for false imprisonment, assault and battery, that one year would be the limitation, and for ordinary negligence and the like, two years would be the limitation. However, the statute which most reasonably applies to the Act is K.S.A. 60-512 which provides: ‘An action upon a liability created by a statute other than a penalty or a forfeiture,’ and a three year statute of limitation is therein described.” Palmer, A Practitioner’s Guide to the Kansas Tort Claims Act, 48 J.K.B.A. 299, 303 (1979).
Since the KTCA was enacted, die Kansas appellate courts have never been asked to resolve this issue. Witiiout addressing the issue, however, the appellate courts have applied the statute of limitations applicable to the underlying action. See Lindenman v. Umscheid, 255 Kan. 610, 620-25, 875 P.2d 964 (1994) (abuse of process and malicious prosecution); Borg Warner Acceptance Corp. v. Kansas Secretary of State, 240 Kan. 598, 604-05, 731 P.2d 301 (1987) (negligence); Martin v. Board of Johnson County Comm'rs, 18 Kan. App. 2d 149, 153-58, 848 P.2d 1000 (1993) (personal injury).
Altiiough the legislature did not specify which limitations period would apply, the legislature clearly expressed its intention that governmental entities would be liable for their employees’ acts and omission if a private person would be liable under the same circumstances. See K.S.A. 75-6103(a). See also Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, Syl. ¶ 3, 711 P.2d 1330 (1985) (duty of State under KTCA in doing highway maintenance work is the same as that required of private individuals doing the same work). Under the Kansas Code of Civil Procedure, a two-year limitations period applies to negligence claims against private persons. K.S.A. 1993 Supp. 60-513(a)(4). Based on the legislature’s clearly expressed intention that governmental entities are to be liable under circumstances in which a private person would be liable, we conclude the two-year statute of limitations applies to this action.
Plaintiff argues the three-year statute of limitations should apply because the KTCA creates liability. Without the enactment of the KTCA, plaintiff asserts, the State would be immune from liability. According to plaintiff, the KTCA created substantive new rights and liabilities regarding governmental entities.
Prior to the enactment of the KTCA, the right of action against the State for damages occurring on highways was not based on common-law negligence but was a statutory cause of action. Trout v. Ross Constr. Co., 240 Kan. 86, 90, 727 P.2d 450 (1986). Under the KTCA, the State is subject to liability based on ordinary negligence principles. 240 Kan. at 90.
In determining whether the three-year statute of limitations applies, our inquiry is whether the statute created the cause of action. An action is not based upon a liability created by statute if the right would exist at common law without the statute. A statute is merely remedial if it does not give any new rights. Pecenka v. Alquest, 6 Kan. App. 2d 26, 28, 626 P.2d 802, rev. denied 229 Kan. 670 (1981).
For example, we believe that a statute which does create liability is the Kansas Consumer Protection Act (KCPA), K.S.A. 50-601 et seq. Because liability may be established without proving the intent to defraud, an action under the KCPA is distinguishable from a common-law fraud claim. Haag v. Dry Basement, Inc., 11 Kan. App. 2d 649, 651, 732 P.2d 392, rev. denied 241 Kan. 838 (1987). Other statutes which create liability include the veterans’ preference law, K.S.A. 73-201 et seq., (see Pecenka, 6 Kan. App. 2d at 29) and actions brought by the State against the county treasurer and its surety, State, ex rel., v. Masterson, 221 Kan. 540, 545, 561 P.2d 796 (1977).
In Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 556 P.2d 199 (1976), plaintiff was injured by a motor carrier. Plaintiff brought suit against the motor carrier’s insurer under a statute allowing suit directly against the insurer, although the carrier is not made a party to the action. Plaintiff argued the three-year statute of limitations applied because the right to sue was a liability of the insurer created by statute. The Kirtland court, characterizing the nature of the action as one in tort and the statute as procedural and not substantive, held the two-year statute of limitations applied. The Kirtland court said:
“If plaintiff’s position is adopted by this court, she would have two years in which to sue the original tortfeasor and three years to sue his insurer. The insurer would be exposed to a greater period of liability than the original tortfeasor. It is the obligation of this court to interpret statutes to express the intent of the legislature [citation omitted], and we cannot believe the legislature intended to create such an anomaly. [Citation omitted.] Since the insurer by statute stands in the shoes of the insured, he can have no greater or lesser rights or obligations than the insured. [Citations omitted.]” 220 Kan. at 634.
Under the facts shown here, plaintiff’s claim is based on ordinary negligence. The KTCA does not “create” a cause of action like the highway defect statute, K.S.A. 60-301 (Weeks) (since repealed), the Kansas Consumer Protection Act, or the veterans’ preference law. Instead, the KTCA removes the immunity granted governmental entities at common law. By eliminating a defense, the KTCA merely created a remedial, not a substantive, change. Tort actions against the State are brought pursuant to the KTCA. Such are not brought in violation of the KTCA.
Furthermore, if plaintiff’s position was adopted by this court, KDOT would be open to suit for a longer period than a co-tortfeasor who is a private person. This result directly contradicts the legislature’s expressed intention that governmental entities be equated with private persons in determining liability. Additionally, such interpretation ignores the inequity resulting from co-tortfeasors being exposed to suit for different periods of time.
Plaintiff argues that “ where there is doubt as to which statute of limitations should apply, the longer statute should be chosen.’ ” Haag, 11 Kan. App. 2d at 652 (quoting Holley v. Coggin Pontiac, 43 N.C. App. 229, 240-41, 259 S.E.2d 1, cert. denied 298 N.C. 806 [1979]). However, given the overriding principle of statutory construction that the intent of the legislature is to govern if that intent can be ascertained from the plain language of the statute, the limitations period applicable to the underlying cause of action controls claims brought under the KTCA. We conclude the district court did not err in granting judgment to KDOT.
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Gernon, J.:
Carol Lorraine Vargas appeals from a district court decision in a divorce action. The district court granted José R. Vargas a divorce, divided the marital assets, and decided that maintenance awarded to Carol in a separate maintenance decree issued the year before in a different county was no longer justified under the present circumstances.
Carol argues: (1) that the district court had no jurisdiction to modify the property division and maintenance award made by a different county in the prior action; (2) that the district court was barred from modifying the previous property division and maintenance award by operation of the doctrine of collateral estoppel; and (3) that an award of maintenance may not be- modified except upon a finding of changed circumstances.
José and Carol were married on December 5, 1985. On September 9, 1992, Carol was awarded a default decree of separate maintenance against her husband by the district court in Dickinson County, Kansas. José had been personally served and received notice of the action, but he did not file an answer or otherwise appear in the case. The district court, however, concluded that it had jurisdiction over both the petitioner and the respondent as well as the subject matter of the action. Upon reviewing the evidence Carol presented, the district court found that the parties were incompatible and that a decree of separate maintenance should be granted to Carol. The court ordered José to pay Carol $500 per month for support and maintenance for a total of 72 months. The court also awarded Carol the parties’ residence, subject to any indebtedness, and proceeded to divide the remainder of the marital assets. Neither party appealed from this decision.
On August 30, 1993, José filed for divorce in Geary County, Kansas. José attached a certified copy of the separate maintenance decree to the divorce petition. Carol was properly served but did not file an answer or any other responsive pleading. At a hearing on November 18, 1993, both parties were present, with Carol appearing pro se. After concluding that it had jurisdiction over both parties, the court granted José a divorce on grounds of incompatibility. The court then recognized the prior separate maintenance decree from Dickinson County and found that the parties did not wish to make any changes in that order as it related to the property and debt division. The only change made to the property division was for José to have an equitable lien on the parties’ residence; José’s name was to remain on the title to the property until the mortgage was paid in full, the loan was refinanced, or the property was sold. The district court, on its own motion, then continued the hearing to a later date to further address the remaining issue of maintenance.
This subsequent hearing was held on November 30, 1993. After listening to the testimony presented and reviewing the court file, which included José’s domestic relations affidavit as well as a list of Carol’s expenses and her correspondence with the court, the judge found as follows:
“2. On the issue of maintenance, the Court finds that the parties’ earning capacities and salaries are basically the same and diat although the petitioner makes slightly more tiran the respondent that weighing the division of property and all the balancing statutory factors, this Court finds it difficult to find any validity for the continuation of maintenance. Although arguments have been advanced by the respondent for maintenance, such are not supported by any substantial evidence, and because of the foregoing factors the Court will order all maintenance to cease after the $500.00 in maintenance is paid for December, 1993 and $500.00 for January 1994, both remaining payments to be made through the Clerk of the Court of Dickinson County for further payment to the respondent at such address as she shall provide. The Court recognizes that while diere is no particularly good reason to continue such maintenance even for two months, that such time will allow a last adjustment period to occur.”
Carol subsequently filed a motion to vacate the divorce judgment, claiming that it purported to modify the division of property and the award of maintenance made by the Dickinson County District Court in the prior separate maintenance action. Carol, now represented by counsel, argued that the Geary County District Court had no jurisdiction to modify either the division of property or the award of maintenance and that even if the court did have jurisdiction, there was no showing that the relative financial circumstances of the parties had changed between the date the decree of separate maintenance was entered by the Dickinson County District Court and the time of the trial in the present case. Carol also argued that José was estopped from litigating issues of property division and maintenance in the divorce action pursuant to the doctrine of collateral estoppel. Finally, Carol stated that at no time during the divorce trial did she intend to agree or consent to a modification of the division of property of the parties made by the Dickinson County District Court, and, if she made statements which indicated that she did so agree, those statements were the product of her mistaken understanding of what was being considered by the court.
Carol’s motion to vacate was heard by the court on January 18, 1994. In denying the motion, the district court stated as follows:
“(1) [S]eparate maintenance and divorce are separate causes of action; (2) the four conditions of res judicata are not met in this case; (3) estoppel and res judicata are affirmative defenses and must be affirmatively pled and therefore, if not, are deemed waived; (4) since the instant divorce was a separate cause of action from the separate maintenance previously filed in Dickinson County, the parties did not need to show a change in circumstances to modify alimony; (5) the respondent was apparently in agreement on numerous items and was well aware of what the Court was considering based upon her previous correspondence and her statements in court. The Court does not believe the respondent was mistaken or surprised at trial.”
Carol appeals.
JURISDICTION
Carol argues that a division of marital property made by one Kansas district court in a separate maintenance action may not be modified by another district court under any circumstances and that an award of maintenance made in conjunction with a division of the marital property may only be modified by the district court which originally issued the award.
Carol relies upon Childers v. Childers, 210 Kan. 105, 499 P.2d 1062 (1972). In 1967, Roberta Childers filed for divorce, division of property, and custody of the parties’ children. She later amended her petition to ask for separate maintenance. Separate maintenance was granted, the property was divided, and custody of the children was given to Roberta. No alimony was asked for or awarded. In 1970, Roberta filed for divorce and asked for alimony. Her husband argued that the alimony issue was res judicata as she could have obtained alimony in 1967 but did not. The trial court granted the divorce and awarded Roberta alimony. Her husband appealed.
Carol argues that Childers suggests that had maintenance been properly determined in the separate maintenance action, this issue could not have been brought before the trial court in the subsequent divorce action. However, Childers can also be read to mean that any award of maintenance or lack thereof in a separate maintenance proceeding is not binding upon a subsequent court in an action for divorce.
“An action for alimony or separate maintenance is an entirely different cause of action than one for divorce.” Saint v. Saint, 196 Kan. 330, 333, 411 P.2d 683 (1966). “A divorce, if granted, completely dissolves the marriage relation; whereas a decree of separate maintenance permits the continuation of the relation in a legal sense.” Zeller v. Zeller, 195 Kan. 452, 457, 407 P.2d 478 (1965). Once a divorce is granted, there is nothing upon which a decree of separate maintenance can operate. Saint, 196 Kan. at 333.
While the precise question at issue has never been explicitly addressed by Kansas appellate courts, at least one authority seems to indicate that, if one party has obtained a separate maintenance decree, nothing precludes that spouse or the other spouse from subsequently suing for divorce. Also, if maintenance is awarded pursuant to a decree in a separate maintenance action, it settles the issue for the separate maintenance only. Should one of the parties subsequently seek a divorce, the court may examine the respective incomes of the parties to determine if maintenance is appropriate once a divorce is obtained. 1 Elrod, Kansas Family Law Handbook § 9.092 B (1990 rev. ed.).
Our conclusion is that despite the presence of the prior decree of separate maintenance from another jurisdiction, José was not precluded from bringing an action for divorce in Geary County. The Geary County District Court, pursuant to K.S.A. 1993 Supp. 60-1610(b), had full jurisdiction over the parties and subject matter and could properly examine the issue of whether maintenance should be awarded upon termination of the marriage.
Carol contends further that there was no authority for a district court to later modify in a divorce action a final and definitive property division made in a prior separate maintenance action. Carol cites no authority for this proposition.
It is correct that where matters concerning the disposition and division of property and property rights are adjudicated and settled in a final divorce decree, the trial court is thereafter without statutory authority to change, alter, or modify the judgment with respect to the property so divided. Flannery v. Flannery, 203 Kan. 239, 244, 452 P.2d 846 (1969). However, there is no holding that the permanency of a division of property in a separate maintenance action or the award of maintenance or the lack of an award has the same status.
In Linson v. Johnson, Executrix, 223 Kan. 442, 443-44, 575 P.2d 504 (1978), the court held that in order to terminate the rights of inheritance of either of the parties to the marriage, a separate maintenance decree dividing the marital property must be specific and clearly indicate such an intent on the part of the trial court. K.S.A. 1993 Supp. 60-1610(b) does not prevent a trial court from awarding fee simple title to property in a separate maintenance proceeding as long as language is used by the courts to give effect to that intent. K.S.A. 1993 Supp. 60-1610(b) in and of itself does not vest in the parties a fee simple title to property set apart to them individually in a separate maintenance proceeding so that each party shall have the right to convey, devise, and dispose of the same without the consent of the other.
Here, the Dickinson County District Court did clearly state that it was awarding title to the property free and clear of any claims by the other spouse. However, in the subsequent divorce action, the trial court did not change how the Dickinson County District Court had previously divided the property. The court merely allowed José to keep his name on the title to the parties’ house until the mortgage was fully paid or refinanced or until the house was sold. This was done with the full agreement of both parties.
We reject Carol’s contention that, because the separate maintenance action was originally heard in Dickinson County, that court should retain exclusive jurisdiction over the subject matter and the parties. Carol cites Nixon v. Nixon, 226 Kan. 218, 596 P.2d 1238 (1979); Wheeler v. Wheeler, 196 Kan. 697, 414 P.2d 1 (1966), and Schaeffer v. Schaeffer, 175 Kan. 629, 266 P.2d 282 (1954), as support for her position. These cases are not on point and relate to die continuing jurisdiction a district court retains in a divorce action. Unlike separate maintenance actions, proceedings regarding child support are not separate and distinct actions from divorce.
Carol cites Schaeffer for the following statement: “The general rule is that when a court of competent jurisdiction acquires jurisdiction of the subject matter and of the parties, its jurisdiction continues as to all matters therein involved until the issues are finally disposed of, and no court of co-ordinate jurisdiction should interfere with its action.” 175 Kan. at 633. The facts in Schaeffer reveal that husband and wife each filed a petition for divorce, but in two different counties. 175 Kan. at 630. One court was found to be without jurisdiction over the parties because the one-year residency requirement was not satisfied, and the Kansas Supreme Court held that, where jurisdiction was proper in the other county, the former county was without authority to entertain any petitions for relief. 175 Kan. at 633-34. Clearly, Schaeffer is distinguishable from the present case as it involved two concurrent actions for divorce involving the same parties.
Carol further asserts that allowing a district court to determine property and maintenance issues in a subsequent divorce action that had already once been determined in a separate maintenance proceeding would result in many marital issues being tried twice. This argument is self-defeating, given the fact that Kansas cases are virtually nonexistent in dealing with this specific issue. In addition, there are so few separate maintenance proceedings filed in the courts of Kansas that any duplication of efforts by the district court is not potentially great.
COLLATERAL ESTOPPEL
Carol next argues that because the issues involving property division and maintenance were previously adjudicated in the separate maintenance proceeding, these issues could not be relitigated.
José contends that this doctrine is an affirmative defense which must be timely raised in a responsive pleading or it will be deemed waived. See K.S.A. 1993 Supp. 60-208(c); Oehme v. Oehme, 10 Kan. App. 2d 73, 77, 691 P.2d 1325 (1984), rev. denied 236 Kan. 876 (1985).
A pro se litigant is held to the same standard as other parties and is required to follow the same rules of procedure as a party represented by counsel. Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 595, 730 P.2d 1109 (1986). Since Carol failed to raise this issue in a responsive pleading or in any manner prior to the court’s judgment, this matter is deemed waived.
Even if properly raised, collateral estoppel would not bar the trial court from addressing property and maintenance issues in the divorce action.
“ ‘The doctrine of res judicata is a bar to a second cause of action upon the same claim, demand or cause of action. It is founded upon the principle that the party, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction. The doctrine of collateral estoppel is a bar in an action upon a different claim as to certain matters in issue which were determined in a former judgment. The distinction between res judicata and collateral estoppel is based on the distinction between a cause of action and issues in a cause of action.’ ” State v. Parson, 15 Kan. App. 2d 374, 377, 808 P.2d 444 (1991) (quoting Penachio v. Walker, 207 Kan. 54, 57, 483 P.2d 1119 [1971]).
“Under the doctrine of collateral estoppel, an issue once actually litigated and determined may not again be litigated in a subsequent action between the same parties or their privies, even though involving a different cause of action.” 15 Kan. App. 2d at 377.
The Dickinson County District Court only dealt with the maintenance that was awarded in the separate maintenance proceed ing. Once the divorce was granted, this prior decree became meaningless, and any consideration of whether to award maintenance upon the termination of the marriage was a new, unlitigated issue.
MODIFICATION OF JUDGMENT OF MAINTENANCE
Finally, Carol questions whether a judgment for maintenance entered in a separate maintenance proceeding by one court can be modified by another court in a later divorce action without a finding of changed circumstances.
Carol relies upon K.S.A. 1993 Supp. 60-1610(b) and Lambright v. Lambright, 12 Kan. App. 2d 211, 740 P.2d 92 (1987), for her assertion that maintenance can only be modified where the trial court makes a finding that circumstances present when the award was made have significantly changed.
We note that Lamb-right involved a motion to modify alimony previously awarded in a divorce case. We affirmed the trial court’s decision denying the former husband’s motion to. terminate alimony due to changed circumstances. Lamb-right did not involve a prior separate maintenance proceeding and, therefore, is distinguishable from the case before us.
We conclude that if maintenance is awarded pursuant to an action for separate maintenance, it settles the issue for the separate maintenance only. Should one of the parties subsequently seek a divorce, the court may examine the respective incomes and assets of the parties to determine if maintenance is appropriate upon legal dissolution of the marriage. Therefore, an obligor spouse is not required to demonstrate a change of circumstances prior to raising the issue of maintenance in a subsequent divorce proceeding. Under these circumstances, there is yet to be a determination regarding permanent maintenance, and there is nothing for the court to modify. The court in the divorce action starts anew in making its determination of whether to make such an award.
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The opinion of the court was delivered by
Pollock, J. :
This case is before us upon rehearing. It has again been fully briefed and argued. The facts will be found stated in the former opinion of this court, 65 Kan. 610, 70 Pac. 702. The law there declared reads:
“A preferential payment by a debtor to one of his creditors, within four months prior to the former’s bankruptcy, is not void under clause b, section 60, and clause e, section 67 (30 U. S. Stat. atL., ch. 541), of the bankruptcy act of 1898, though made with a fraudulent intent on the debtor’s part, if it be accepted by the creditor without knowledge of such intent and without knowledge that a preference was intended.”
The question is, Shall that decision now be upheld or overruled ? Prior to the passage of the national bankrupt act of 1898 (30. U. S. Stat. at L., ch, 541), in this and other jurisdictions the estate of an insolvent debtor was often swept away in an unequal division among his creditors, leaving unsatisfied demands to harass and annoy the debtor. .The intent of the lawmaking power in the passage of this act was twofold : (1) The protection and discharge from liability of the bankrupt; (2) the equal distribution of his nonexempt property among his creditors in proportion to their provable demands. (Swarts v. Fourth Nat. Bank, 117 Fed. 1, 54 C. C. A. 387; In re Gutwillig, 92 Fed. 337, 34 C. C. A. 377.) One of the methods employed by the insolvent debtor to effect an unequal distribution of his estate among his creditors before the passage of this act was, without any fraudulent intent on his part, to prefer one or more of his creditors over others. Another method was to transfer a portion or all of his property to one or more of his creditors to the exclusion of all others, with the intent ou his part to hinder, delay and defraud his other creditors. In the case first mentioned the transfer was without fraud, therefore valid. In the second case, the transfer having been made without any guilty knowledge on the part of, or participation in the fraudulent act of the debtor by, the creditor, the transfer was upheld as valid. To remedy this, among other existing evils, the act was passed.
In the case at bar it was found by the court from the evidence, as follows :
“8. That the said William Luckhardt, in causing the above-described real estate to be conveyed to this defendant, intended thereby to prefer this defendant over his other creditors.
“9. That the said William Luckhardt, in causing the above-described real estate to be deeded to this defendant, intended thereby to hinder, delay and defraud his other creditors.
“10. That the said defendant was not a purchaser of said real estate in good faith and for a present fair consideration.”
“12. That upon the trial of this action the counsel for plaintiff admitted that the said William Luckhardt, at the time he caused to be conveyed to the defendant the real estate herein above described, the said William Luckhardt was indebted to the said defendant in the sum of $1500, and that it was further admitted that the said defendant, M. M. Luckhardt, at the time she received and accepted the conveyance of said premises to herself,' had no knowledge of the insolvency of her husband, William Luckhardt, nor of his intention or purpose to defraud, hinder or delay his creditors in the collection of their debts by means of said conveyance to her of said real estate'; that the defendant had no knowledge of the plaintiff's intention to make her a preferred creditor; and that . the reasonable value of the real estate conveyed to her was $1500.’’
The contention of the parties to this controversy is this: On the one hand, the trustee claims that the conveyance, under finding 10 of the court, is condemned by, and may be avoided under, the provisions of clause e of section 67. of the act which provides :
“That all conveyances, transfers, assignments or incumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration ; and all property of the debtor conveyed, transferred, assigned or encumbered as aforesaid shall, if he be ad judged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be' and remain a part of the asséts and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors.”
The defendant contends that, under findings 9 and 12 above quoted, “the conveyance was a preference, and having been received by the creditor without knowledge on her part of the insolvency of the debtor, or his intent to hinder, delay and defraud his other creditors, or to prefer her over other creditors, it must be upheld. Clause b of section 60 of the act, reads:
“If a bankrupt shall have given a preference within four months before the filing of a petition, or after the filing of the petition and before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.”
Clause g of section 57 reads :
“The claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences.”
Under these provisions of the act, upon the findings made by the court, and viewed alone in the light of a preference only, we are of the opinion that the contention of defendant would prevail, but the condemnation of the act does not end here. The clauses quoted from section 57 and section 60 treat only the subject of preferences. No mention is there made of fraud. The law-making power dealt with the subject of fraud in clause e of section 67 of the act, and in language so plain, concise, exact and unequivocal as to leave no room for doubt or construction, there inhibited all transfers of the property of an insolvent debtor made within four months prior to the institution of bankruptcy proceedings under the act wherein the debtor, with the intent on his part of hindering, delaying or defrauding his creditors, parted with his property regardless of the knowledge of, or participation in, such fraud by the creditor.
This is a case of first instance in this state in construing the above provisions' of the act. In other jurisdictions a like view of the act has been reached. (Friedman v. Verchofsky, 105 Ill. App. 414; Unmack, Receiver, v. Douglass 75 Conn. 638, 55 Atl. 12.) There are cases holding a contrary view. (Congleton v. Schreihofer, [N. J. Ch.] 54 Atl. 144; Gamble, Appellant, v. Elkin, 205 Pa. St. 226, 54 Atl. 782.) However, the reasoning employed in these cases, contrary to the view expressed in this opinion, does not commend itself to our judgment or meet our approval. Such a construction of the act would nullify one of its most important and beneficial provisions, and in so far as the act deals with fraudulent transfers of the property of an insolvent debtor the law would remain the same as before the passage of the act, and this, notwithstanding the act prohibits all conveyances, transfers, assignments or incumbrances of the property of the insolvent debtor within four months prior to the filing of the petition in bankruptcy with the intent and purpose on his part to hinder, delay or defraud his creditors or any of them, “except as to purchasers in good faith and for a present fair consideration,” in which case the estate of the bankrupt to be distributed is not diminished, and also notwith standing the fact that the act itself avoids all transfers which might be avoided under existing state laws.
It follows, upon the findings made by the trial court, that the trustee is entitled to judgment in his favor setting aside the conveyance made. Therefore, the former opinion of this court, 65- Kan. 610, 70 Pac. 702, must be overruled, the judgment below reversed, and the cause remanded with direction to enter judgment in favor of the trustee.
Cunningham, Burch, Mason JJ. concurring.
Johnston, C. J., Smith, Greene, JJ., dissent from the reasoning and conclusion of this opinion for the reasons stated in the majority opinion on the original hearing. | [
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The opinion of the court was delivered by
Cunningham, J.:
Before plaintiff in this action could recover, he must have removed the bar of the statute of limitations which had apparently run on the note upon which his action'was based. This he attempted to do by pleading that a payment had been made thereon. He was the purchaser of this note, which had been given to the First State Ban'k of Marion, from the assignee of that bank. At the time of its purchase there was attached to it by a rubber band a note made by one Waterman, payable to the order of Ehrlich Brothers, the makers of the note purchased. The Waterman note, however, did not .bear the indorsement of Ehrlich Brothers, its payees. It was the suspicion of the purchaser, (3-ood, that the Waterman note had, during the life of the bank, been left with the bank by Ehrlich Brothers as collateral to their note. After the statute of limitations had run on the Ehrlich Brothers’ note, Good collected from Waterman a part of the money due on his note, as a compromise for the full amount due, and indorsed the same, without the knowledge or consent of Ehrlich Brothers, upon the note in suit. This was the payment relied on to remove the bar of the statute. Was it efficient for that purpose, within the meaning of section 4452, General Statutes of 1901 ? That section provides :
“When any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought, etc.”
The court sustained a demurrer to the plaintiff’s evidence. We are well convinced that in this no error was committed. It is only by the remotest deduction that it may be assumed that the Waterman note was left with the bank by Ehrlich Brothers as collateral to their note. Indeed, the evidence seems to us as consistent with the theory that it was left by them for collection and credit to their account, as for collection and payment upon their note. If the former, then of course even the immediate collection and credit upon the note could not have tolled the statute ; so that, with this view, we are of the opinion that the court was right in sustaining the demurrer.
But perhaps we should go further and discuss the question as to what constitutes a part payment, and when the making of it would toll the statute ; or, as in this case, revive the note, if the statute had run. We will admit, for this purpose, that the Waterman note was deposited by Ehrlich Brothers with the bank as collateral to their note, and held by the bank with authority to collect and apply the proceeds as a payment on this note. While the language of the statute is that a part payment shall operate to toll the limitation, it certainly cannot be understood to mean that such part payment made by any one at any time for any purpose -would so operate. It is well recognized in the books that such payment must be made by the obligor, against whom the statute is sought to bq tolled, or by some one at his direction, and made as a part payment of the debt under such circumstances as to amount to an acknowledgment of an existing liability. At common law, and in the absence of a statute, a part payment was held to toll the statute, upon the principle that it was an acknowledgment of an existing liability at the time the payment was made. Indeed, this court has recognized that principle, and in effect held that a part payment, so to operate, must rise to the dignity of such an acknowledgment. In Steele v. Souder, 20 Kan. 39, 42, this-language is found:
“No valid reason exists why payment should be more potent than acknowledgment or promise. Indeed, payment was treated by the courts as simply an evidence of acknowledgment."
In United States v. Wilder, 13 Wall. 254, 256, 20 L. Ed. 681, the same point was ruled as follows :
“The principle on which part payment takes a case out of the statute is, that the party paying intended by it to acknowledge and admit the greater debt to be due. If it was not in the mind of the debtor to do this, then the statute, having begun to run, will not be stopped by reason of such payment.”
The same principle was announced in Arnold v. Downing, 11 Barb. 554, and Butler v. Price, 110 Mass. 97. See, also, 33 Cent. Dig. §632.
In Wood on Limitations, third edition, section 97, the rule is stated in the following language :
“In order to make a money payment a part payment within the statute, it must be shown to be a payment of a portion of an admitted debt, and paid to and accepted by the creditor as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment of more being due, from which a promise may be inferred to pay the remainder. In order to have that effect, it must- . . . appear . . . that the payment was made under such circumstances as warrant a 'jury in finding an implied promise to pay the balance ; and if the payment was made under such circumstances as to rebut any such promise, it does not affect the operation of the statute.”
In section 101 it is further stated that such payment—
“must have been made by the debtor in person, or by some one authorized by him to make a new promise on his behalf. And payment made by a third person, without authority from the debtor to make it, cannot remove the statute bar, because it does not imply any acknowledgment of the debt by the debtor.”
In section 115 it is announced that the indorsement of a part payment made when the note is barred does not furnish evidence sufficient to establish the fact of payment; further, that an indorsement by the plaintiff without the knowledge of the defendant does not operate to take the note out of the statute, unless it is accompanied by proof that the payment was in fact made to apply on the note.
Now, in this case the Waterman note was surrendered to the maker upon payment by him of a portion only of what was due thereon, and the amount so received was indorsed upon the Ehrlich Brothers’ note after the bar had run, without their knowledge or consent. It must be apparent that the collection and indorsement were not made upon the note by Good as the agent of Ehrlich Brothers, for no agency was shown, except what might be inferred from the fact that the note was held as collateral, and surely such an inference will not be indulged in when the result is so much to their disadvantage, for in addition to reviving a note barred by the statute of limitations, it was accomplished at the sacrifice of the Waterman note for less than the amount due thereon. An indorsement made upon the Ehrlich Brothers’ note without their knowledge or consent, under these circumstances, with funds thus obtained, cannot be held to amount in law to an acknowledgment on their part of an existing liability on the note. It is ruled in many cases that the application of the proceeds of collateral in part payment of the principal note will not toll the statute, unless made under such circumstances as would show that it was done with the knowledge .and consent, and by the authority, actual or implied, of the debtor, and that the implied authority to do this, arising from the fact of the pledging, must be exercised within a reasonable time, or it will be deemed to have been withdrawn. In the case at bar it seems that nearly, if not quite, five years had elapsed before this was done.
Again, admitting that the bank was, by the fact of pledging, constituted Ehrlich Brothers’ agent for the purpose of collecting and applying the proceeds of the Waterman note, still it may well be doubted if that agency would be carried over to the assignee of the bank and then by his sale of the note to the purchaser, Good. Such a holding would extend the principle of agency beyond all recognized bounds. This limitation was noted in the case of Letson v. Kenyon, 31 Kan. 301, 1 Pac. 562. We hold that, even though it had been shown that Ehrlich Brothers had deposited with the bank the Waterman note as collateral to their own, a collection of a portion of it and its indorsement upon their note did not, under the circumstances shown, remove the bar of the statute.
There is a question of practice remaining in the caso. Plaintiff in setting out the note of course disclosed the fact that it was barred. For the purpose of removing the bar, he pleaded that the Waterman note had been pledged as collateral to the note sued on, and that the makers of the note had authorized the bank to collect and credit all payments made on such collateral upon this note. To this petition defendants filed a general denial. Plaintiff now insists that defendants could only avail themselves of the statute of limitations by pleading it, and cite decisions of this court to the effect that, where the pleadings do not show upon their face that the cause of action is barred by the statute, the defendant must specially plead such bar. The answer to this is that the bar did appear in the petition, and upon the plaintiff fell the burden of removing it. He pleaded such facts as he supposed would remove the bar, and by the general denial defendant's put in issue the truth of these facts. Upon the failure of the plaintiff to prove these facts the bar at once operated.
We find no error in the action of the court. The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
In an action pending in the district court of Labette county, wherein Charles P. St. Clair was plaintiff and the Missouri, Kansas & Texas Railway Company was defendant, a demurrer to the evidence offered by plaintiff was interposed by defendant, sustained, and the following judgment entered in the case.
“ Thereupon this cause came on for further hearing upon the demurrer of the defendant filed to the evidence adduced by the plaintiff herein; said defendant appeared by T. N. Sedgwick, its attorney, in support of said demurrer, and said plaintiff appeared by F. F. Lamb and C. A. Cox in opposition thereto ; and the court, having heard said demurrer, argument of respective counsel, and being now fully advised in the premises, doth sustain said demurrer of the defendant; the plaintiff at the time duly ex- ' cepted and excepts; thereupon it is by the court ordered that the jury herein be discharged from a further consideration of this case; that the defendant do have and recover of and from the plaintiff judgment for costs herein, taxed at $_, to all of which judgment and ruling the plaintiff at the time duly excepted and excepts."
Execution was issued on this judgment for costs, in amount $163.05, and levied on a stock of drugs, the property of plaintiff therein. At the time of the levy the Farmers’ and Merchants’ State Bank, defendant in error herein, held a chattel mortgage on this stock of drugs. This mortgage, however, was not of record.
The bank commenced this action-of replevin against the sheriff in possession by virtue of his levy of such execution to recover the stock of drugs, it being claimed by plaintiff that at the time of the levy of the execution it was in possession of the stock of drugs under its mortgage. On the trial the defendant attempted to justify the taking of the stock of drugs in execution under the above judgment for costs. The court refused to receive in evidence the record of this judgment in St. Clair against the railway company for the reason that the amount of costs adjudged against the plaintiff therein was not entered on the journal, and also refused to receive any evidence tending to show the amount of costs adjudged against the plaintiff therein. A verdict in favor of plaintiff and against defendant was returned by direction of the court, and judgment entered thereon. The defendant brings error.
As the court refused to permit defendant to show that he had no knowledge of the existence of plaintiff’s mortgage, and no notice that plaintiff claimed possession of the stock of goods at the time he seized it in execution, it is fair to assume that the court regarded the question of defendant’s notice of plaintiff’s claimed rights to be wholly immaterial, upon the theory that-the judgment in St. Clair against the railway company, and the execution based thereon, were absolute nullities and void. It is also conceded by counsel for defendant in error that if the sheriff may justify under the execution based upon this judgment for costs this case must be reversed; hence, this is the only question in the case which we shall consider.
The attack made on the judgment in question is collateral. If the judgment is void it may be thus ignored. If merely voidable or irregular, the sheriff may justify thereunder, as a valid execution may issue on an irregular judgment. The question here presented is not a new one in this court. In the case of Houston v. Clark, 86 Kan. 412, 13 Pac. 739, real estate was sold on execution under a judgment for costs, in the following language :
“Now comes the plaintiff, C. T. Association, by J. M. Hagaman, the attorney, and moves the court here to dismiss this action, without prejudice to a future action, at cost of plaintiff; which is accordingly done.”
In that case it was held:
“In an action where a journal entry shows that the plaintiff in the action ‘ moves the court here to dismiss this action without prejudice to a future action, at cost of plaintiff, which is. accordingly done,’ and afterward an execution is issued to recover the costs, and real estate of the plaintiff is levied upon and sold for that purpose, and the sale confirmed by the court and. a sheriff’s deed executed, and the purchaser takes possession of the real estate, held, that shch journal entry is a sufficient judgment when collaterally aU tacked to uphold the sheriff’s deed and the other proceedings had under it.”
That case we think controlling here. From the record made in the case of St. Clair against the railway company, it is clear the court determined that the plaintiff should be adjudged to pay all costs made in the case. Such was the judgment entered. The amount of costs taxable was not ascertained by the court but left to computation by the clerk. It was his duty under the statute to insert the result of his computation, when'made, in the journal entry of judgment. This he failed to do, but this neglect of the clerk so to enter the costs taxed did not operate to nullify the judgment of the court. The amount of costs so adjudged against the plaintiff could be ascertained from the clerk or from an inspection of the records in his office by any one at any time. From such examination the judgment is made certain. In Clay v. Hildebrand Bros. & Jones, 34, Kan. 694, 9 Pac. 466, this court held :
“Wherever an entry of a judgment is so obscure as not to clearly express the exact determination of the court, reference may be had to the pleadings and the other proceedings ; and if, with the light thus thrown upon such entry, its obscurity is dispelled and its intended signification made apparent, the judgment will be uphéld and carried into effect in the same manner as though its meaning and intent were made clear and manifest by its own terms.”
We are of the opinion that the trial court should have permitted the defendant to show by the clerk of the court from the records in his office the amount of costs adjudged against the plaintiff, and should have permitted or required the clerk to insert such amount in the blank left for that purpose on the journal in entering the judgment rendered. This amount, with accruing costs made in the enforcement of the judgment of the court, the plaintiff is liable to pay, and payment may be enforced by execution.
The case of Fisher v. Franklin, 38 Kan. 251, 16 Pac. 341, is cited as opposed to the conclusion reached. That was a statutory proceeding to amerce a sheriff for failure to return an execution. Such proceeding is in its nature highly penal and the literal terms of the statute must be strictly followed before a judgment of amercement will go. ^Ye do not think that case authority here.
It follows that the judgment must be reversed and a new trial awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
These were actions of replevin brought tor ecover cattle formerly owned by Ed. Noble, in Butler county, and which were sold by him to Gunter Brothers and George D. French & Son. Prior to the sales of the cattle Noble gave to the Goodloe-McClelland Commission Company a promissory note for $7433.88 and at the same time executed a chattel mortgage on the cattle in question to secure the payment of the debt. The following is a copy of the note :
“$7433.88. Kansas City, Kan., May 29, 1900.
“One hundred and eighty-two days after date, without grace, for value received I promise to pay to Goodloe-McClelland Commission Co., or order, seven thousand four hundred thirty-three and 88-100 dollars, at the office of Goodloe-McClelland Commission Co., Kansas City, Kan., with interest from maturity at eight per cent per annum.
“The makers and indorsers hereby severally waive protest, demand, and notice of protest and non-payment in case this note is not paid, at maturity, and agree to all extensions and partial payments before or after maturity, without prejudice co holder.
(Signed) Ed. Noble.”
The mortgage given to secure the note provided that until default, or until possession should be taken by the mortgagee, the mortgagor should retain possession of the property, and also contained this further provision : ■
“When marketed, the consent of the second party having been first obtained, said property shall be consigned to the second party at the Kansas City stockyards, Kansas City, Kan., or Kansas City, Mo., and the proceeds applied to the payment of the above-mentioned indebtedness, the surplus being paid to the first party. If said cattle, or any part thereof, be consigned or sold elsewhere than above, then said mortgagee shall pay a commission of fifty cents per head on all.the above-described cattle.”
Before the maturity of the note and mortgage the same were sold and transferred to the City National Bank of Kansas City, Missouri. On August 16, 1900, Noble sold forty-two head of steers to Gunter Brothers, and on the 18th day of August, 1900, a check corresponding with the amount received for the cattle was forwarded by Noble to the commission company; but it applied the proceeds to the payment of other indebtedness, secured by another mortgage which Noble had given to that company. Noble likewise sold sixty-nine head of the cattle to George D. French & Son on November 9, 1900, and their draft for $2360 was forwarded to, and received by, the commission company and applied in payment of another mortgage given by Noble to the commission company.
No part of the money paid on the sales of the cattle was received by the City National Bank of Kansas City, Missouri, the holder of the note for $7433.88 and the mortgage given to secure the same. The bank then brought these proceedings in replevin against the purchasers of the cattle, claiming the same under its mort gage. Upon issues joined' a trial was had, and the plaintiff having offered its evidence, the court sustained demurrers thereto, and gave judgment for the defendants in each case.
The principal, and perhaps the controlling, question in the cases arises on the negotiability of the note transferred from the commission company to the bank. If the note and mortgage on which the bank bases its claim are non-negotiable, the purchasers of the cattle can make the same defenses that Noble could have made as against a claim of the commission company. If he had been called upon by the commission company to account for cattle sold by him, he could have responded that he had remitted the proceeds of the sales to the company and, as it had appropriated the proceeds, it mattered not whether it had one or several chattel mortgages on the cattle sold. By the terms of the mortgage Noble was authorized either to ship the cattle to the company or, if he should sell them elsewhere, to pay to the company a commission of fifty cents per head on the cattle sold. The sale of the cattle by Noble and the receipt and appropriation of the proceeds of such sales by the commission company were substantially the same as if Noble had shipped the cattle to Kansas City and the defendants had bought them from the commission company and brought them back to Butler county.
Assuming, then, that the paper was not ¡negotiable, in the absence of evidence that the purchasers of the cattle had any notice of the assignment and transfer of the paper, the same defenses were open to them that would have been if the actions had been brought by the commission company. The important question, then, for our determination is whether the note upon which the plaintiff founds its right possesses the character and advantages of commercial paper.
It is said to lack the element of certainty as to time of payment because of the provision embodied therein that ‘ ‘ the makers and indorsers hereof hereby . . . agree to all extensions and partial payments before, or after maturity, without prejudice to holder.” An essential requirement of negotiable paper is certainty as to time of payment. In the note in question payment is first fixed at 182 days after the date, but, as will be observed, a later provision makes the time indefinite by stipulating that it may be changed and extended either before or after maturity. If the time is to remain fixed until maturity when another time is to be fixed by the parties, or if payment is made to depend upon events which necessarily must occur and the time of payment is ultimately certain, other considerations would arise ; but here payment is not ultimately certain, for the time named in the paper is subject to change at any time at the volition of some of the parties to the paper.
Our attention is called to Killam v. Schoeps, 26 Kan. 310, 40 Am. Rep. 313, where the note under consideration contained a like provision ; but’ an examination of that case shows that the attention of the court was not drawn to this provision, and its effect upon the negotiability of the paper was not considered or determined. A case in point is Glidden v. Henry, 104 Ind. 278, 1 N. E. 369, 54 Am. Rep. 316, where the note was payable twelve months after date, but contained a provision that the time of payment might be extended indefinitely as the payee or his assigns might see fit. The court remarked :
“From inspection of the note, it is impossible to tell when it may mature, because it is impossible to know what extension may have been, or may hereafter be, agreed upon. No definite time is fixed, nor is the maturity of the note dependent on an event that must inevitably happen. The condition is not that something may happen, or be done, that will mature the note before the time named, thus leaving that time as fixed and certain, if the thing do not happen, or be not done ; but the condition is that the time named may be displaced by another uncertain and indefinite time, as the parties may agree.”
A note containing a similar clause was before the supreme court of Iowa, and it was held that because the time of payment was uncertain, and was not capable of being made certain, the law did not regard it as negotiable paper. In the course of the opinion it was said:
‘ ‘ Notes, which by their terms are payable on or before a fixed time or a specified event, are, it is true, uncertain as to the time at which they are payable. But there is no uncertainty as to the time when they become absolutely due. Paper of this character is regarded by the courts as negotiable. But the note before us may never fall due, for payment may be extended indefinitely.” (Woodbury, Williams & English v. Roberts, 59 Iowa, 348, 13 N. W. 312, 44 Am. Rep. 685.)
In Coffin v. Spencer, 39 Fed. (C. C.) 262, a promissory note containing a clause which authorized the extension of the time of payment from time to time as often as required was before the court, and it was there said:
“Every successive taker of the paper is, of course, bound to take notice of the stipulation, and, instead of looking only to the face of the instrument for the time of its maturity, as in the case of commercial paper he must, is put upon inquiry whether or not any agreement for a renewal or extension of time has been made by his proposed assignor or by any previous holder.”
The conclusion of the court was that a stipulation which required a party to inquire into extrinsic facts in order to ascertain when the paper was payable destroyed its negotiability. The supreme court of Michigan, in Second National Bank v. Wheeler, 75 Mich, 546, 42 N. W. 963, determined that a stipulation in a note ■to the effect that the payee or holder might extend the , time of payment without notice, and without prejudice to his rights against makers, sureties, and indorsers, took from the instrument its negotiable character. See, also, Lamb v. Story, 45 Mich. 488, 8 N. W. 87 ; First National Bank v. Carson, 60 id. 432, 27 N. W. 589 ; Oyler et al. v. McMurray, 7 Ind. App. 645, 34 N. E. 1004; Rosenthal v. Rambo, 28 id. 265, 62 N. E. 637; Citizens’ N. Bank v. Piollet, 126 Pa. St. 194, 17 Atl. 603, 4 L. R. A. 190, 12 Am. St. Rep. 860.
The authorities are not uniform as to the proper test of the negotiability of a note, but we think that the correct rule has been stated in those that have been cited. The time of payment in the instrument in question was contingent and uncertain and depended on the future .action of the parties, which no one could anticipate. The case of Clark v. Skeen, 61 Kan. 526, 60 Pac. 327, 49 L. R. A. 190, 78 Am. St. Rep. 337, is cited as an authority to sustain the negotiable quality of the note in controversy. There payment of the note was to be made at a fixed date, but there was a provision in it to the effect that default in the payment of interest would make it mature at an earlier time. That case is plainly distinguishable from the one under consideration. There the time of payment was ultimately certain, although by certain .agreed conditions it might be matured before that time. Here the time of payment depends on the future agreement of the parties. No one can tell from .an inspection of the instrument itself when it may mature, as it cannot, be known what extension may have been or may hereafter be agreed upon. We therefore conclude that the uncertainty of the time of payment is fatal to the negotiability of the instrument.
The same defenses were therefore open to the purchasers of the cattle that would have been if the actions had been brought by the commission company, and as that company received the proceeds of the sal© of the cattle, and in effect sanctioned the sales, the lien thereon was extinguished and they are precluded from reclaiming the cattle so sold. It is unnecessary therefore to consider the matter of the description of the cattle in the mortgage or the other questions which have been discussed by counsel.
It follows that the judgment in each case must b© affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when gas escaped from pipes connected with a hot water heater sold to plaintiff by defendant and caused an explosion in the plaintiff’s home. Judgment was for the defendant, sustaining a demurrer to the petition. The plaintiff has appealed.
Since the appeal turns on the statute of limitations, special attention will be paid to dates. The action was commenced on Ocober 10, 1949.. The petition alleged that during the year 1946 defendant operated a business at which he sold, amongst other things, electric and gas hot water heaters with controls; that these heaters were many of them heated with propane or butane gas and as a part of his business defendant installed such equipment in the homes of his customers; that on the 30th of January, 1946, defendant sold plaintiff a heater, to which was attached automatic controls, together with a tank for the storage of gas; that defendant installed it in the basement of plaintiff’s house; that it was equipped with an automatic hot water control, known as a “Grayson Unitrol,” consisting of a thermostat, a 100 percent thermo-magnetic automatic pilot shut-off valve, main gas shut-off cock, gas floor control valves and pilot valve; that this was supposed to be so assembled that whenever the pilot light became extinguished the 100 percent cut-off valve would automatically, without exception, shut off all gas going either to the pilot light or to the main burner of the heater; that the line running from the storage tank to the heater was equipped with a valve, which when turned manually, cut off the flow of gas from the storage tank to the heater. The petition then alleged that this installation was completed about February 11, 1946; that about the 6th day of June, 1946, the mechanism failed to function properly and on request of the plaintiff an employee of defendant placed it in operation and represented to the plaintiff that he had adjusted the thermo-couple by placing it closer to the flame of the pilot light; that the heater functioned in a normal manner up to the morning of the 6th of September, 1948, when it ceased to operate and plaintiff’s wife turned the manually operated valve so as to cut off the flow of gas from the tank; that at noon plaintiff endeavored to light the pilot light to start the burner by first turning the gas control valve to the pilot position so that the fuel would flow to the pilot light of the heater; that he had been led to believe that the 100 percent cut-off valve was functioning; that a large amount of gas had escaped into the basement and when plaintiff struck a match this gas ignited, resulting in a severe explosion, which injured him. The petition then contained allegations as follows:
“(13) That at the time of such explosion the above mentioned 100 percent cut-off valve was not functioning properly nor in proper working condition nor assembled properly, but was, on the other hand, wholly defective in that the spring, which was supposed to close the valve disc against the valve seat whenever the pilot light became extinguished, was' between the valve disc and the valve seat, an improper place for such spring, for the reason that in such posi tion the spring would not permit the valve disc to close against the valve seat so as to cut off the flow of gas.
“(14) That the position of said spring in said 100 percent cut-off valve would not permit the valve to function properly.
“(15) That plaintiff does not know and cannot ascertain by any means within his control whether such 100 percent cut-off valve was in that condition when it was installed in his farm home or whether the said Sherbondy, defendant’s employee, opened the valve and improperly reassembled it on the occasion of his visit to plaintiff’s home to service said heater.
“(16) That neither plaintiff nor any member of his family nor any person whomsover, to his knowledge, after the installation of said heater in his farm home, ever attempted, prior to said explosion, to take down said 100 percent cut-off valve or to re-assemble it or otherwise to tamper therewith in any respect whotsoever, other than what the defendant or his agents might have done in that respect.
“(17) That under the facts and circumstances, as herein set out, said 100 percent cut-off valve was an imminently dangerous appliance.”
The petition alleged it was the duty of the defendant to make a test of equipment to determine whether or not the 100 percent cutoff valve was in proper order; that liquid gases, such as propane, which were used as fuel by plaintiff to operate the heater, were heavier than air and, therefore, had a tendency to lie near the floor of the room, where the same might have escaped; that defendant and his agents were informed as to this characteristic of propane gas and knew that it would be dangerous to install equipment in the basement because there were no openings for the gas to escape. The petition then contained allegations as follows:
“(20) That said defendant, his agents and servants, in violation of their duty to and toward plaintiff, were guilty of carelessness and negligence in and about the sale, installation and servicing of said hot water heater equipment and particularly the so-called 100 percent cut-off valve, and that such negligence and carelessness consisted of the following:
“(a) in failing and neglecting to test such equipment, including particularly said 100 percent cut-off valve, at the time of the installation thereof in plaintiff’s home and before turning same over to plaintiff, to determine whether or not such equipment and valve were in perfect condition and good working order;
(h) in failing and neglecting to test such equipment, including particularly said 100 percent cut-off valve, at the time of the servicing thereof, by said Sherbondy, defendant’s agent, to determine whether or not such equipment, including said valve, were in perfect condition and good working order;
(c) in failing and neglecting to install said gas hot water heater and equipment in the kitchen or some other ground floor room of plaintiff’s said house, instead of in the basement thereof, which, if done, would have permitted the gas, should it have escaped, to have escaped more readily from such room where it should have been installed, through doors and openings therein;
(d) in failing and neglecting to discover, by the exercise of reasonable care and caution, which was defendant’s duty under the circumstances, the defective condition of said 100 percent cut-off valve, both at the time of the installation and the servicing thereof;
(e) if the defendant, or his employees, either at the time of the installation of said heater or the servicing thereof, took down said 100 percent cut-off valve and then reassembled it, then such reassembling was done in such a careless and negligent manner as to leave the valve in the defective and dangerous condition it was in on the day of the explosion, as hereinbefore set out.”
The petition alleged further that this plaintiff relied at all times upon the representations of the defendant that the heater was in perfect running order and the explosion was the proximate result of the carelessness and negligence of the defendant, as already set out.
The defendant filed a motion directed at this petition in which he asked that plaintiff be required to separately state and number his causes of action. When this 'motion was being argued counsel for the plaintiff stated:
“The plaintiff relies solely upon tort for recovery, and does not rely upon any contract, oral or written, express or implied.”
There was no motion to make the petition more definite and certain, whereupon the court overruled the motion of defendant. Subsequently the defendant demurred to the amended petition for the reason it showed on its face the cause of action attempted to be set forth was barred by the statute of limitations, especially G. S. 1935, 60-306, 3rd subdivision, and for the further reason that it did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. This demurrer was sustained and the plaintiff has appealed.
The action was filed on October 10,1949; the heater was installed on February 11, 1946; it was last serviced by defendant on June 6, 1946, and the explosion occurred on September 6, 1948. That section of the statute of limitations, to which the defendant referred in his demurrer, is as follows:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: . . .
“Third. Within two years: ... an action for injury to the rights of another, not arising on contract ... an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
Defendant argues the • very latest an action could have been started by plaintiff against defendant under the circumstances was two years from June 6,1946. That would be on June 6,1948 — hence if the defendant is correct in his first premise this action was commenced too late. The rule is generally in this jurisdiction that whenever one party may sue another a cause of action has accrued and the statute begins to run. (See Bruner v. Martin, 76 Kan. 862, 93 Pac. 165; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899; Kinnard v. Stevens, 122 Kan. 347, 251 Pac. 1085; and Fletcher v. Holcomb, 142 Kan. 177, 45 P. 2d 1053.)
The matter of limitation on time to bring actions is statutory. While the legislature saw fit to provide that in actions based on fraud the cause of action should not be deemed to have accrued until the discovery of the fraud, there is no such provision as to other causes of action, such as we have here. With reference to them, the statute provides the action must be brought within the time provided after the cause of action shall have accrued and not afterwards. We have demonstrated that the cause of action accrues whenever one party can sue another.
There is an allegation in this petition that at the time of the explosion the 100 percent valve was not functioning properly. The petition then alleges that plaintiff could not say whether this was due to its being defective when it was installed on February 11, 1946, or was improperly assembled when -defendant’s employee serviced it on June 6, 1946. Plaintiff pleads of what defendant’s negligence consisted as follows: (a) in failing to test the equipment at the time of the installation; (b) failing to test it at the time the equipment was serviced; (c) failing to install at some place other than basement; (d) failing to discover defective condition of apparatus at time of installation or servicing; and (e) reassembling heater in a negligent manner. Granted that any one or all of these acts or omissions were invasions of plaintiff’s rights or failure to perform a duty owed plaintiff by defendant, it must be conceded none of them was done or omitted later than on June 6,1946, at the latest.
Plaintiff concedes there was an invasion of his rights when the heater was negligently installed and when it was negligently serviced. He argues, however, that before a cause of action accrues to him two things must have occurred, that is, there must have been an invasion of plaintiff’s personal or property rights and damage to him. He argues that he did not sustain any damages, even nominal, until the explosion occurred, and states that if he had brought an action within two years after the heater was installed he could have recovered nothing.
This was a tort action by which plaintiff sought to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Our question is, when did plaintiff’s cause of action for this negligent act of defendant accrue? Or stated in another way, when could the plaintiff have sued the defendant for damages for personal injuries caused by his negligence? We lay aside the question of the statute of limitations for a moment. The last negligent act of defendant is alleged to have occurred on June 6, 1946. Had the plaintiff discovered this negligent act of defendant within two years after it was committed, could he have brought an action for personal injuries then?
Not every failure to exercise due care gives rise to a cause of action. There must be resulting damage. The rule is stated in 65 C. J. S. 366, as follows:
“Injury or damage to the person complaining is an essential element of actionable negligence, since, as discussed infra, para. 175, even though an act or omission may be negligent in the colloquial sense because it involves a lack of due care, no cause of action arises therefrom unless the person complaining has been injured in consequence thereof.”
Again—
“The ‘cause of action’ in a suit for damages arising from negligence means the negligent act or acts which occasioned the injury, or the act done or omitted to be done by defendant affecting plaintiff, which causes a grievance for which the law gives a remedy. It is not the injury inflicted but the fact or facts which justify the action or show a right to maintain it. Negligence, in and of itself, is not liability, and establishes no right of action, actionable negligence of defendant must be shown.” (65 C. J. S. 854.)
Again—
“Since injury is one of the essential elements of actionable negligence, as discussed supra § 6, the declaration or complaint must show that plaintiff was injured by defendant’s negligence . . .” (65 C. J. S. 906.)
See, also, 1 C. J. S. 1011, where the rule is stated:
“As a general rule, to constitute a valid cause of action there must be both an injury and damage, as the law recognizes, according to some decisions, that as there may be damage without legal injury, as explained above in subsection 15b (1), so there may be legal injury without damage, as expressed by the maxim, Injuria absque damno, or, Injuria, sine damno, and accordingly that just as damage without injury does not constitute a cause of action, as explained above in subsection 15b (1), so also an action cannot be maintained for an injury without damage.”
Here we call attention to the rule stated in Weeks “Damnum Absque Injuria” on page 7:
“Damage as defined to be the loss caused by one person to another, or to his property, either with the design of injurying him, or with negligence and carelessness, or by inevitable accident.
“Strictly speaking, injuria is a wrongful act or tort, that relates to the defendant. Damnum is the loss sustained or harm done as a consequence of an injury, and relates to the plaintiff. But the terms are often used in a different sense. The injury must not only be a violation of a right which the plaintiff is entitled to enjoy, but it is essential to the maintenance of an action for the same that the plaintiff suffer legal damages thereby. . . .
“It is not enough that an unauthorized act or injury be done, but the plaintiff must sustain a loss by reason thereof, and must have a right or interest to be impaired. Without this, where there is injuria, it is injuria sine damno, without damage to the plaintiff, and he is without a remedy. The plaintiff must show not only injuria, but an invasion of some right or interest which he is entitled to enjoy to the exclusion of others.”
See, also, City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. 821, where the court said:
“Injury is the wrongful act or tort which causes loss or harm to another. Damages are allowed as an indemnity to the person who suffers loss or harm from the injury. The word ‘injury’ denotes die illegal act, the term ‘damages’ means the sum recoverable as amends for the wrong. The words are sometimes used as synonymous terms, but tíiey are, in strictness, words of widely different meaning. There is more than a mere verbal difference in their meaning, for they describe essentially different things. The law has already recognized a difference between die things described, for it is often declared that no action will lie because the act is damnum absque injuria.”
Some courts have made a distinction between the use of the words “injuria” or “injury” and the word “damnum” or “damages,” the injury being the invasion of the legal right or the “tort” and the “damnum” or “damages” being the indemnity paid the person who had suffered loss on account of the injury. We have in our opinions not observed this distinction as far as terminology goes. We have used the words “damages” and “injury” interchangeably. Our question is — Could the plaintiff have sued the defendant for damages for personal injury on account of the invasion of his rights, that is, the negligent installation or servicing of the heater, before the explosion occurred and the actual damages were sustained? Did he have a cause of action in tort then against the defendant?
“An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for . . . redress ... of a wrong.” (G. S. 1949, 60-104.)
The wrong is clearly in a case such as ours the negligent installation and servicing of the heater. Defendant cites and relies on A. T. & S. F. Rld. Co. v. Rice, 36 Kan. 593, 14 Pac. 229, where it is said—
“The elements of any cause of action are: (1) A right possessed by the plaintiff; (2) An infringement of such right by the defendant.”
This definition omits an element we have generally held to be necessary. In Gibson v. Packing Box Co., 85 Kan. 346, 116 Pac. 502, a father had sued the box company because its failure to comply with a factory act had caused his son to be injured. There was a judgment for the plaintiff. On appeal we decided the appeal in favor of the defendant. We quoted Faris v. Hoberg et al., 134 Ind. 269, 33 N. E. 1028 as follows:
“In every case involving actionable negligence there are necessarily three elements essential to its existence:
“(1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) A failure by the defendant to perform that duty; and, (3) An injury to the plaintiff from such failure of the defendant.”
We also quoted from 29 Cyc. 420 as follows:
‘When these elements are brought together they unitedly constitute actionable negligence, and the absence of any one of these elements renders the complaint bad or the evidence insufficient.”
In Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, the appeal was decided on the question of whether the damage which followed from the plaintiff could have been reasonably anticipated by him. We held:
“Negligence, to be actionable, must result in damage to some one, which result, in the absence of wantonness or malus animus, might have been reasonably foreseen by a man of ordinary intelligence and prudence, and be the probable result of the initial act.”
This is a definite holding that for negligence to be actionable damage must result, that is, with no damage the tort, negligence or failure to perform.a duty, whatever it is called, is not actionable, and setting it out in a petition does not state a cause of. action. To the same effect is Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83; McMillen v. Summunduwot Lodge, 143 Kan. 502, 54 P. 2d 985; also Butterfield v. Springfield Life Ins. Co., 128 Kan. 510, 278 Pac. 733. In the latter opinion we again referred with approval to the rule laid down in 29 Cyc. 419 already set out here as to the three elements of actionable negligence.
Roberts v. Read, 16 East Court of King’s Bench, 215 (1812) was based on the falling down of a wall which resulted from the wrongful act of defendants as public officers committed at so long a time before the wall fell as to entitle the defendants to the benefit of a special statute of limitations if the cause of action arose when the wrongful act was committed. Lord Ellenborough said:
“It is sufficient that the action was brought within three months after the wall fell, for that is the gravamen; the consequential damage is' the cause of action in this case. If this had been trespass, the act must have been brought within three months after the act of trespass complained of; but being an action on the case for the consequential damage, it could not have been brought till the specific wrong had been suffered; and that only happened within three months before the action brought.”
See, also, National Lead Co. v. City of New York, 43 Fed. 2d 914, where the court held:
“Action ‘accrues’ when actual damage has resulted from negligence complained of.”
Urie v. Thompson, 337 U. S. 163, 69 Sup. Ct. 1018, 93 L. Ed. 1282 (1949), 168, was a case where a locomotive fireman sued the railroad company because he had contracted silicosis on account of the company failing to maintain sanders on its locomotives in good condition. One of the defenses urged was that Urie had been exposed to the dust that caused silicosis many years before and he must have contracted the disease more than two years before bringing the action. The supreme court disposed of this argument by saying:
“If Urie were held barred from prosecuting this action because he must be said, as a matter of law, to have contracted silicosis prior to November 25, 1938, it would be clear that the federal legislation afforded Urie only a delusive remedy. It would mean that at some past moment in time, unknown and inherently unknowable even in retrospect, Urie was charged with knowledge of the slow and tragic disintegration of his lungs; under this view Urie’s failure to diagnose within the applicable statute of limitations a disease whose symptoms had not obtruded on his consciousness would constitute waiver of his right to compensation at the ultimate day of discovery and disability.”
The case is not unlike the case at bar. Should it be held that Kitchener was bound to bring his action for personal injuries within two years of the negligent servicing of his hot water heater, the practical effect would be to deprive him of any remedy for his injuries and damages since during that two years he had suffered no personal injuries which would have been the basis of such an action. In fact, the 100 percent valve, the negligent installation and servicing of which caused this damáge, was a safety device and its condition or the manner of its installation or servicing would never have resulted in damages to plaintiff had the pilot light not been extinguished in some manner.
We pause here to note Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287, 200 N. E. 824. That like Urie v. Thompson, supra, was an action to recover damages for a lung disease plaintiff alleged he contracted while working for defendant company on account of defendant’s alleged failure to provide a safe place to work. The action was barred if the cause of action accrued when the plaintiff last worked for defendant more than three years before the action was brought. The court held the statute had run. It placed the decision, however, on the fact that “except in cases of fraud the statute begins to run when the liability for wrong had arisen even though the injured party might be ignorant of the existence of the wrong or injury.” That is, it placed the decision not on the ground, as defendant does here, that the cause of action had accrued more than the statutory time before the action was brought, but on the fact that the damage had not been discovered. In the same opinion the court said, in considering such a situation as we have here:
“Though negligence may endanger the person or property of another, no actionable wrong is committed if the danger is averted. It is only the injury to person or property arising from negligence which constitutes an invasion of a personal right, protected by law, and, therefore, an actionable wrong. (Cf. ‘The Duty to Take Care,’ by W. W. Buckland, 51 Law Quarterly Review, p. 637; Pollock on the Law of Torts [12th Ed.] p. 186.) Through lack of care a person may set in motion forces which touch the person or property of another only after a long interval of time. (Cf. Ehret v. Village of Scarsdale, 269 N. Y. 198); and then only through new, fortuitous conditions. There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury. Otherwise, in extreme cases, a cause of action might be barred before liability arose.”
This holding might appear to be dicta since it was not absolutely necessary to support the decision made. However, it is persausive to us that had the New York Court of Appeals been presented a case such as we have here it would have held the defendant had set in motion forces that might never bring damage unless such a fortuitous circumstance as the extinguishing of the pilot light had occurred and that the cause of action did not accrue till then. At any rate, we have the case of Senauke v. Bronx Gas & Electric Co., 284 N. Y. S. 710, where the defendant installed an electrolux refrigerator in a building so negligently that water from the electrolux poured onto the ground underneath the building and caused the wall to crack. When sued, the defendant raised the statute of limitations because the electrolux was installed more than six years before the bringing of the action. The court said:
“The negligent acts complained of were committed more than six years before the bringing of the action. Had plaintiff’s cause of action accrued at that time, as claimed by the defendant, it would be barred by subdivision 3 of section 48 of the Civil Practice Act. To constitute a cause of action in negligence, damages to plaintiff must be shown as well as negligence on the part of the defendant. No damages resulted to plaintiff until about three years prior to the trial of this action. The cause of action could not have accrued until that time and six years had not elapsed at the time the action was brought.”
Milde v. Leigh, 75 N. Dak. 418, 28 N. W. 2d 530, was a case where a doctor was alleged to have performed a sterilization operation on a woman so negligently that she later became pregnant with resulting personal damage. The defendant, amongst other things, raised the defense of the statute of limitations. The court stated that some authorities hold the statute begins to run on the day the wrongful act or negligence occurred, and that other authorities hold the cause of action did not accrue until damages had been inflicted. The court stated:
“Among tlie essential elements of an actionable tort are the wrongful invasion by the defendant of some legal right of the plaintiff and damage resulting to the plaintiff from the wrongful conduct of the defendant. 62 C. J. p. 1102, § 17, p. 1107, § 24; 45 C. J. p. 5, 661, 662.
“It is the conjunction of damage and wrong that creates a tort, and there is no tort if either damage or wrong is wanting. 1 Cooley, Torts, 4th Ed., § 46, p. 87. See also, Post v. Campau, 42 Mich. 90, 96, 3 N. W. 272.”
White v. Schnoebelen, 91 N. H. 273, 18 Atl. 2d 185, was a case where a lightning rod equipment had been negligently installed and the plaintiff claimed he had been damaged on account of that negligence. The defendant alleged amongst other defenses the action was barred on account of the statute of limitations. The equipment was installed in July, 1930, but the buildings were struck by lightning in 1937, more than six years later. The action was brought on April 2, 1938. If the cause of action accrued when the equipment was negligently installed, then the action was barred. The court said:
“Necessary elements of a cause of action based upon negligence are the causal negligence of the defendant, plus resulting harm to the plaintiff. Putting it another way, there must be negligence and harm, and they must have causal connection.”
It is worth noting that the supreme court of New Hampshire relied on Schmidt v. Merchants Despatch Trans. Co., supra. The supreme court made the further observation:
“It is not suggested that one who installs a lightning rod system owes no duty of care towards one whose property may be damaged because of improper installation. The defendant seems to suggest, however, that if the negligent installation does not result in harm until six years have passed, the party to whom the duty is owed can have no right of action. This is not consonant with sound theory as to when rights of action for negligence accrue. Nor is it probable that the legislature intended that the statute of limitation should operate against the accrual of rights of action, rather than merely as a bar to rights of action after accrual. The statute afforded no ground for taking the case from the jury.”
This is persuasive to us. Volumes might be written and the case not stated much better than the above. The argument of defendant in this case, stated succinctly, is that because the fortuitous event the 100 per cent valve was intended to guard against, that is, the extinguishing of the pilot light, did not happen for more than two years after the negligence occurred, this defendant should go free and be absolved from liability. We,do not care to subscribe to that doctrine. (See, also, Dumas v. Hartford Accident & Indemnity Co., 92 N. H. 140, 26 Atl. 2d 361.)
Theurer v. Condon, 34 Wash. 2d 448, 209 P. 2d 311, was a case where the plaintiff alleged defendant had negligently installed an oil stove and supply tank in an apartment house. Some years afterwards due to this negligent installation there was a fire which damaged the apartment. If the cause of action accrued when the stove was negligently installed the statute had run against the cause of action. If on the other hand it had accrued when the damage happened the cause of action had not run. The court held:
“Where a fire hazard was created by the negligent installation of an oil burner and reservoir, the hazard was continuous, and the statute of limitations did not commence to run as to damages caused by a fire resulting from the hazard until the date of the fire.”
We are not holding the statute did not begin to run until the damages could be ascertained or until they were discovered. We are simply holding that the statute did not begin to run until the damages were sustained.
In Rudman et ux. v. City of Scranton et al., Aps., 114 Pa. Super. 148, 173 A. 892, the action was against the city of Scranton and the water company. The negligence alleged was a faulty construction of mains by the water company some years before the wife of plaintiff was injured. The court quoted the statutes of Pennsylvania as follows:
“ ‘Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards.’ ”
Then the court said:
“The action accrues when the damage is sustained by the plaintiff, not when the causes are set in motion ultimately producing injury as a consequence: Pollock v. P. B. & L. E. R. R. Co., 275 Pa. 467, 119 A. 547; Noonan v. Pardee, 200 Pa. 474, 50 A. 255.”
(See, also, Rosenthal v. Carson, Appellant, 149 Pa. Sup. 428, 27 Atl. 2d 499.)
In Fredericks v. Dover, 125 N. J. L. 288, 15 A. 2d 784, the action was against the city because a metal covering over a storm guttering had been negligently constructed. This construction had taken place a number of years before the woman was injured. The court said:
“Under our statute, R. S. 2:24-2, the accrual, of the cause of action, is the prescribed injurious event from which the period of limitation is to be computed. By the accrual of the cause of action is meant the right to institute and maintain a suit. Weinstein v. Blanchard, 109 N. J. L. 332 (at p. 336); Larason v. Lambert, 12 Id. 247; 37 C. J. 810; 17 R. C. L. 764. The respondents here had no right to institute and maintain their suit until the wife sustained the injury and damage for which she seeks recovery.”
The defendant seems to realize the effect of the rules we have already set out in this opinion. He states that had plaintiff brought an action within two years of the alleged negligence of defendant he could have recovered the cost of a new gas heater and the appliances; he could have recovered the cost of the installation of the heater and appliances; he could have recovered the cost of taking the heater, appliances and attachments out of the basement and installing them in the kitchen or some other room on the ground floor of plaintiff’s home; he perhaps could have shown other actual damages, if so, he could have recovered all damage done to him by the defendant’s wrongful acts and negligence.
The trouble with defendant’s argument in that connection is that all of these elements would have been proper to recover in an action based on an implied contract of the defendant. This, as has been remarked, is an action for personal injury on account of the negligence of the defendant, as the petition discloses. When the heater failed to work in June defendant serviced the heater but did it negligently, it is charged in the petition. All this was a matter of the contractual relationship between the parties. It has nothing to do with the action for a personal injury growing out of a tort. What the evidence will show is another matter. We are not concerned with that now.
Appellee cites and relies on what we have held heretofore in K. P. Rly Co. v. Mihlman, 17 Kan. 224; Bartlett v. Bullene, 23 Kan. 606; Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518; Provident Loan Trust Co. v. Wolcott, 5 Kan. App. 473, 47 Pac. 8; Railway Co. v. Dale, 68 Kan. 108, 74 Pac. 596; Becker v. Potter, 119 Kan. 626, 240 Pac. 584; Graham v. Updegraph, 144 Kan. 45, 58 P. 2d 475. He argues these opinions are authority for his statement that “damage is not a part of the cause of action for tort.” We have examined the opinions and find that they turn on a point different from the one involved here. In all of them some damage was certain to follow from the committing of the negligent act. In cases such as the malpractice action some damage followed as a matter of course from the leaving of the drill in the patient’s jaw or the radium beads in the woman’s uterus. We place the decision in this action on the ground and on the sole ground that had the plaintiff brought the action any time before the explosion, for personal injuries on account of the negligence alleged, he would have met the defense that he had suffered no personal injury on account of negligence. He had not been damaged. He does not argue that he did not discover the negligence and damage. He simply argues he was not damaged by tort or negligence until the explosion.
We hold that the petition does not show on its face that the statute of limitations had run against the cause of action alleged by the plaintiff.
Defendant next argues that the demurrer should have been sustained because the petition did not state facts sufficient to constitute a cause of action. In this connection he argues that the petition merely alleges that the defendant installed a Grayson Unitrol and there is no allegation that defendant manufactured, constructed or assembled either the Grayson Unitrol or the integral parts of the unit. He argues that the only reasonable inference to be drawn from the allegations of the petition is that the defendant purchased these items and equipment from a wholesaler or manufacturer and was engaged wholly in the sale and installation of such equipment. The rule is stated in 46 Am. Jur. 943, Sec. 817, as follows:
“Moreover where the seller of an article reasonably must know that if it is defective it will be imminently dangerous to persons likely to come in contact therewith, a duty rests upon him to use ordinary care to ascertain the condition of the article and see that it is safe, especially where, by representations or warranties that the article is safe, he induces the sale. If he fails to exercise ordinary care to ascertain the safety of the article, so that he actually sells it in an imminently dangerous condition, he is liable for injuries to third persons who he knows will come in contact with the article.”
In House v. Wichita Gas Co., 137 Kan. 332, 20 P. 2d 479, we dealt with a damage suit growing out of the sale and installation of gas heating equipment. There we held:
“Where a company, whose principal business is the distribution of natural gas for lighting and heating purposes, sells regulating appliances to be used in burning gas and thereafter supervises and repairs the same, it is incumbent upon it to exercise great care that such appliances not'only are fit and proper for the purpose for which they are installed, but that they are in- proper working conditions.”
Defendant knew that propane was a dangerous gas. He also knew the heater in this case was installed in the basement of plaintiff’s home. He was under the duty of exercising a high degree of care in the installation and servicing of it.
Among the allegations of the petition is one that the defendant was negligent in not testing the 100 percent cut-off valve when he installed it and again when he serviced it in June. The argument -of defendant on this point is stated as follows: “all this means that the entire equipment and installation was submitted to the rigid test of performance. The gas was turned on and ignited and it performed satisfactorily until June 6, 1946. Frankly we know of no other or more satisfactory test.”
The petition is open to the construction that the pilot light became extinguished in some manner. The purpose of the “100 percent Unitrol valve” was to shut off the supply of gas into the basement in case this ever happened. The explosion was caused by this valve not functioning. If when the equipment was installed or when it was serviced the pilot light had been blown out it would have then appeared that the “Unitrol unit” was not functioning properly and proper steps could have been taken to correct the trouble and the explosion would not have happened. The defendant who installed this equipment and later serviced it owed the duty to plaintiff to make such an inspection.
The judgment of the trial court is reversed with directions to overrule the defendant’s demurrer and proceed with the trial of the action.
Habvey, C. J., Thiele and Parker, JJ, dissent. | [
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Per Curiam:
Defendants’ depositions were quashed on motion of plaintiffs. Application was then made by defendants for a continuance of the case, and an affidavit showing diligence filed.’ As showing the meritorious character of the evidence which they expected to produce, the defendants attached to and made a part of their affidavit the depositions which had been quashed. The plaintiffs elected to admit the affidavit and go to trial. They objected to the reading of the depositions as part of the affidavit. The court permitted their reading, and this is alleged as error. We think the court was right. The depositions were specifically referred to as part of the affidavit. ' They were therefore as much a part of it as though they had been copied at length on the paper containing the balance of the affidavit.
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
It is urged by Mack that as to her the action in essence was one in replevin for the possession of the note and mortgage, and that therefore she could not, under any proper construction of our statute, be brought in by service of summons by publication. The amended petition, with answer and reply which followed, together presented no issues other than those tendered by the original petition ; hence we shall consider the question as though it arose solely upon the allegations of the original petition. While in that petition are found averments that the possession of the note was unlawfully obtained and detained by Mack, that she had no right or title to, or interest in, them, and prayed the order of the court that she be required to deliver them up to the plaintiff, still these allegations and this answer were entirely superfluous. The gravamen of the action, as against Mack, was that she claimed some interest in the real estate upon which the mortgage was sought to be foreclosed, and the object of the action, as against her, was to divest her of such interest. True, the naked allegation that she claimed such interest would have been sufficient, but the fact that the nature of the claim was set out fully, and showing made that such claim was untenable, did not vitiate the petition, the essence being, as we have remarked, that she was making a claim of interest in the subject of the action, and was therefore a necessary party to the complete determination of the questions involved. She was, therefore, a proper party to be joined, under section 36 of the code of civil procedure. (Gen. Stat. 1901, § 4464.)
As the subject of the action was real property, and the plaintiff’s petition showed that Mack was claiming some lien or interest therein, and as she was a non-resident of the state, it was proper under section 72 of the code of civil procedure (Gen. Stat. 1901, § 4506) to bring her in by service of summons made by publication. We might further add that it seems that she made full appearance by the filing of her various answers, motions, and demurrers. At any rate, we think that the court had full jurisdiction over her to render the judgment which it did.
Plaintiff in error further complains that there was no proper evidence connecting the note upon which plaintiff brought his action with that which was sold by the Globe Investment Company to her. We are unable to agree with this contention. Aside from the evidence found in the record, which we deem abundant to establish this fact, there is also found this statement made by her counsel in open court during the progress of the trial: ‘ ‘ Defendants produce in court the note and mortgage sued on by the plaintiff, and an extension agreement thereof.” This statement beyond question connects the note and mortgage upon which plaintiff’s suit was based with that in the hands of defendant Mack.
The judgment of the court below will be affirmed.
All the'Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This was an action by Richard Cole, a minor, by his next friend, to recover from Patterson & Son, plaintiffs in error, for injuries sustained through the alleged negligence of the latter while Cole was assisting in the operation (of a feed-mill. It was alleged that he was employed by Patterson & Son to work on a farm, and that there was an express agreement that he should not be required 1 to work at the mill; that on the day of the accident he was directed by his employers to work in the mill and to assist in starting a gasoline-engine used in the operation of the mill; that the floor near the engine-wheel was greasy and slippery, making his footing insecure, and that when the engine-wheel started he slipped and fell, and was caught and crushed by the wheel. It was also alleged that his employers knew all about the condition of the floor and of the danger incident to the.starting of the engine, but that they did not inform thp boy, Cole, of the danger, of which he was ignorant. The findings and judgment were in favor of Cole.
. Complaint is made of the petition, but it appears to be sufficient — good enough, at least, to meet a general objection to the admission of any testimony.
The principal point presented for review is the suf ficiency of the testimony to sustain the findings and vez'dict. In answer to questions, the jury specially found that on the day of the accident the boy was first directed to do work in a room of the mill adjoining the one where the accident occurred; that Cole left that room voluntarily and entered the engine-room where the accident ocourred, without specific direction from Patterson, and also that Patterson directed the boy to assist in starting the engine at the time ©f the accident. The last finding is challenged, and it is contended that it is without support from the testimony.
There was testimony which tended to show that, although Cole was employed to work on the farm and not at the mill, he was directed to do certain things in and about the' mill on the day of the accident. After perforzning each task he returned to Patterson for further directions. Among other things, he - took the grinder apart and to the shop for repairs, after which he came to the engine-room, where Patterson was at work, for further orders. While he was standing near the wheel of the engine Patterson took hold of the wheel, looked at Cole 'and then at the wheel, and this look Cole understood to mean that he should take hold and assist in starting it, as Cole said that two men always assisted in starting it. Patterson was on one side of the wheel and Cole on the other; they were about three feet apart, facing each other. It appears that no word was spoken by Patterson at the time ; and, while he denies that he gave any look, sign or gesture to Cole, indicating that he wanted assistance, there was the testimony of Cole himself that after Patterson took hold of the wheel he looked at him in such a way as indicated to Cole that he desired his assistance, and, in response to the look he took hold of the wheel, and that Patterson was looking at him and saw him undertake to assist. It also appears that he had never worked about the engine, knew nothing of the dangers in running it, or of the conditions that existed in the engine-room. The wheel started suddenly, throwing him under it, and injuring him severely. *
Although the testimony as to the direction of Patterson is meager and not entirely satisfactory, we cannot say that it is insufficient to support the verdict. The fact that no sound was uttered or word spoken does not argue that no direction was given by Patterson. Directions are given in the most important affairs of life by signs, and so we have the language of sounds and the language of the eye, by which communication is made from one person to another almost as intelligently as can be done by speech or other manner of expression.” In Ray v. State, 50 Ala. 104, 107, it was said:
•“The manner in which an act is done — whether rude and offensive, or kind and pleasant — was held to be a matter of fact, open to the observation of the senses, to which a witness may legally testify. Words are nothing exept in connection with the intention with which they are used or taken. The animus of a look, or other expression of countenance, is as perceptible to the eye as words are to the ear, and often much more capable of correct understanding.”
If we accept the testimony of. Cole to its fullest extent, that two men were usually employed to assist in starting the wheel, and that Patterson took hold of the wheel and looked at Cole, who had already b.een assisting in another part of the mill, and then looked from Cole to the wheel, it would be fairly inferable that he desired assistance. He saw Cole come forward and take hold of the wheel, being in front of him, and only three feet away, and yet, according to the testimony, did not tell him to desist or to keep out of the way of danger. Under the findings of the jury, we must assume that Patterson actually saw Cole standing near by ; that he gave him the look of invitation as described by Cole ; that it constituted an inarticulate expression that he desired Cole to assist him in starting the wheel, and that it was so understood by Cole. If he did not desire his help, he should have told him to go away when he approached the place of danger. Patterson was aware of Cole’s youth and inexperience, and should have warned him of any unusual or hidden dangers known to Patterson himself, but which, under the verdict, we must'assume were not known to Cole.
Complaint is made of the ruling of the court rejecting the evidence of Doctor Brown. Soon after the accident he had been called to treat Cole and to assist in repairing the injuries. Doctor Fisher was the family physician, who was sent for, and Brown stated that after Fisher came he understood Fisher to be in charge of the case. Brown, however, after the first visit, returned again to inquire as to Cole’s condition, and while there, it is claimed, a statement was made to him by Cole as to where the blame lay for the accident. Upon objection that it was a privileged communication, the court inquired if Brown had been discharged from the case, and he admitted that there had been no discharge. Upon further inquiry, it developed that the boy regarded Brown as his physician at the time the statement is said to have been made. That being true, the relation of confidence existed, and the court rightfully excluded any statement made under the circumstances.
The published statement of Cole’s father, which was sought to be introduced in evidence, was properly excluded. He was not a party to the action, was not present at the time of the accident, and had no direct knowledge of the circumstances under which the injuries were received. *
There is nothing substantial in the objections to the instructions, and the case appears to have been fairly submitted to the jury. The judgment will be affirmed.
All the Justices concurring. | [
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The'opinion of the court was delivered by
Smith, J.:
This was an action of ejectment brought by defendant in error for the recovery of the possession of 160 acres of land, alleged to have been withheld by Hartshorn. Smart had judgment in the court below. He rested his title and right to recover the land on a deed from one Griffith. Defendant below claimed under a contract executed by one Sample, the agent of Griffith. The agreement was as follows :
“Kingman, Kan., Dec. 1, 1900.
“Received of J. S. Hartshorn fifteen dollars ($15), part payment for a good and sufficient ex tax deed title to the southeast of twenty-five-nine, Kingman, Kansas. The balance, $455, to be paid when the title is so furnished by present owner. If for any cause the title cannot be completed the $15 is to be returned to J. S. Hartshorn. O. "W. Sample.”
The district court held that the memorandum did not satisfy the conditions of section 3174, General Statutes of 1901, relating to frauds and perjuries, the relevant part of which reads :
“No action shall be brought whereby to charge a party, . . . upon any contract for the sale of lands, tenements or hereditaments, or any interest in _ or concerning them; . . . unless the agreement " upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”
It will be readily seen that the contract does not describe the land. The only description is ‘ ‘ southeast of twenty-five-nine, Kingman, Kansas.” We judicially know that there are both a county and city of Kingman. Whether the property is in the county or the town is uncertain. Whether the “twenty-five-nine” refers to lot twenty-five, block nine, or section twenty-five, township nine, we can only conjecture. The words “Kingman, Kansas,” would tend to the conclusion that the city of Kingman was meant. (Fry v. Platt, 32 Kan. 62, 3 Pac. 781; Ross v. Allen, 45 id. 231, 25 Pac. 570, 10 L. R. A. 835; Reid v. Kenworthy, 25 id. 701.)
In Fry v. Platt, supra, the memorandum did not show the nature of the deed which the vendor contracted to make, and this fact was the subject of comment by the court. Here the conveyance contracted to be given was a “good and sufficient ex tax deed title.” This is unintelligible. To help out the agreement, parol evidence was necessary to show where the land was situated, and what kind of a deed the vendor contracted to execute and deliver.
The taking possession by plaintiff in error and fenc ing the land are urged by his counsel as a part performance by him, sufficient in law to validate an oral contract of sale. The proof showed that Hartshorn went into possession in 1897 under a tax-sale certificate, and that he took out a tax deed on the land in September, 1900. This action was begun in May, 1891. In Pomeroy on Specific Performance of Contracts, second edition, section 123, it is said:
“It follows, therefore, that if the possession is not connected with the contract, but is referable to some other cause ; (2) or if it can be naturally and reasonably accounted for upon some supposition other than that of a contract, it will not be a part performance. (3)”
See, also, Browne on the Statute of Frauds, fifth edition, section 476.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Thiele, J.:
The underlying question involved in these appeals is the nature and extent of damages recoverable by a landowner where proceedings in eminent domain under G. S. 1949, 26-201 to 210 inclusive, have been had under the authority of flood control statutes, which, as amended now appear as G. S. 1949, 12-635 to 12-646 inclusive.
Although a more detailed reference is later made to the statutory authority therefor, it suffices here to state that in 1946 the- city of Hutchinson initiated proceedings for the construction of flood control works of some magnitude and which extended beyond the city limits and in order to acquire lands and easements necessary for that purpose, sometime in that year commenced a proceeding in eminent domain in the district court of Reno County, as a result of which commissioners were appointed, and, under procedure of which no complaint is presently made, the commissioners appraiséd the lands taken and assessed other damages done to the landowners and filed their report on July 8, 1946. In due time several of the landowners deeming themselves aggrieved appealed to the district court. Although not expressly so stated, apparently each appeal was docketed as a separate action in the district court as is provided by G. S. 1949, 26-205.
In appeal No. 38,060 it appears that at the time the condemnation proceedings were commenced A. W. Lancastér and wife owned the land in question and appealed from the award made. Subsequently they sold the land to J. J. Yoder and Fannie Yoder and assigned to them all rights in the appeal. Thereafter and on October 11, 1949, the Yoders filed a bill of particulars alleging their ownership of a tract of about 305 acres being one mile east and west and one-half mile north and south and lying about two and three-quarters of a mile northwest of the city, its suitability for cultivation, the number and location of .the improvements on the land, and that a strip 300 feet wide across the west half was taken for flood control purposes and that such condemnation cut their land in two, and that the strip taken was to be used for the purpose of erecting a dike or levee near its east edge and a ditch to the west thereof and that an earthen ramp constructed partly on their land on the south would be erected on either side of the levee to permit travel over the ditch and levee along the county road. And they alleged their damages as to the lands taken and as to the lands not taken. We need not note the city’s motion to strike parts of the bill of particulars, which was sustained in part. Subsequently the city filed its answer admitting the taking of the land and alleging Yoders’ purchase subsequent thereto. It then alleged that the right of way was taken under G. S. 1935, Ch. 26, Art. 2, as amended; that the plaintiffs sought to recover damages occasioned by the construction of the improvement in addition to the damages done to the owners by reason of the taking of their land; that plaintiffs were not entitled to recover damages occasioned by the construction of the improvement, but only to damages caused by the taking; that under G. S. 1935, 12-639,-the city had appointed appraisers to assess damages to property that would be injured or damaged by reason of the flood control improvement and would, at the time of assessment take into consideration the benefit, if any, that said property would receive by virtue of the improvement, and if the benefit was equal to or greater than the injury or damage to the property, no damages would be allowed. The city also made allegations concerning the nature and character of the lands in question; that they were subject to overflow and that the proposed improvement would not materially increase flood damage. Allegations that the landowners could minimize their damages will not be set forth. The city prayed that the plaintiffs have and recover only the value of the lands taken and other damages done by appropriation and that they be allowed nothing for injury or damage to the property by reason of the construction of the improvements. The plaintiffs’ motion to have stricken the allegations as to what they paid for the land was sustained and in other parts was denied.
With the issues thus joined, the parties joined in a motion to have “certain legal questions” determined in advance of trial. The first question contained thirteen lettered paragraphs which presented detailed factual situations which need not be set forth here and inquired whether each situation was proper for consideration by the jury in determining damages in condemnation proceedings. The second question contained four subdivisions, stated alternatively, but the purpose of which was to procure a ruling on whether certain damages would be recoverable under G. S. 1935, 26-201, et seq., or under G. S. 1935, 12-639. The third question, in substance, was whether evidence of the price paid by the Yoders to the Lancasters would be admissible and the fourth question was whether the city might show that the Yoders could minimize their damages by the use of culverts and drain pipes.
In a summary way it may be said the trial court in answering held that evidence would be admissible to show the matters covered by the first question; that evidence would not be admissible to show flood damages which would only be recoverable under G. S. 1935, 12-639 as covered by the second question; that the city could not introduce evidence as to the purchase price as covered by the third question; and that the city could introduce evidence that plaintiffs could minimize their damages, as covered by the fourth question.
The landowners appealed to this court from adverse rulings on the motions to strike, from the rulings on questions No. 2 and No. 4, and from all adverse rulings, and the city cross-appealed from the adverse rulings on the motions to strike, from the rulings on questions No. 1 and No. 3 and from all adverse rulings.
In appeal No. 38,061 the procedure was substantially as noted above. The land involved consisted of a tract of about 77 acres, the west 17 acres being taken by the condemnation. The property was about one-half mile west of the city limits and fronted on Seventeenth Avenue extended west and which was a part of the county highway system. Motions to strike by both parties were sustained in part. Under questions of law submitted the trial court held that in the condemnation proceedings evidence would be re ceived as to the value of the land taken and damage to the land not taken, but evidence would not be received as to damages from the construction of a proposed ramp in the highway to permit crossing the levee and ditch and obstructing ingress and egress, and that such damages, if any, must be through settlement with the city or through the procedure provided by G. S. 1935, 12-639; that it was not proper in the condemnation proceedings to consider, as a factor reducing the value of the land not taken, any damage that would result from change of grade required to provide a ramp, either under G. S. 1935, 26-201, et seq., or 12-639. Appeals by both parties followed.
In appeal No. 38,062 Andrew Graber and wife were the owners of the involved land when condemnation was had. They appealed' and subsequently sold to Rraden, who was substituted as plaintiff. The land involved was a tract of two acres facing north on U. S-Highway 50 and a strip 60 by 132 feet was taken from the front thereof to provide right of way for the purpose of erecting a ramp, necessary to permit crossing over the ditch and levee immediately to the west. The bill of particulai-s set out in detail the location of improvements, use of the land for operation of a storage yard for heavy earth moving equipment and that means of ingress and egress were affected. Upon issues joined, questions of law were submitted. Under its ruling the trial court held that evidence as. to the ramp as obstructing ingress and egress would not be taken into consideration but that plaintiff might introduce evidence as. to the best and most profitable use of the land on the date of taking-Appeals by both parties followed.
It is first noted that the rulings on motions to strike were not the equivalent of demurrers and also that no final judgment has been rendered in the several appeals. The rulings complained of are not now the subject of appellate review.
It is also noted that although the appeals arise from proceedings had in condemnation proceedings and that ordinarily questions of law would be confined to such proceedings, actually the questions propounded are in an effort to obtain a declaration of what may be shown not only under condemnation proceedings but under proceedings under the flood control statutes mentioned.
As far as the record discloses proceedings had under the flood control statutes have not been completed and no appeals therefrom have been taken. Our action in considering the present appeals is not an approval of the procedure followed, but in view of the situation presented the appeals will be considered.
Our review of the statutes above mentioned is not intended to be exhaustive, but sufficient only to dispose of these appeals. The original act authorizing cities to erect improvements for the purpose of protection against flood waters, herein referred to as the flood control statute, was Laws 1917, Ch. 87, which later appeared as R. S. 1923, 12-635 to 12-646 inclusive, and as now amended appears as G. S. 1949, 12-635 to 12-646. The first section has been! amended on a number of occasions, but as it existed in 1946, when the .present improvement plan was initiated it was provided that the governing body of any city might “acquire by condemnation and eminent domain, or purchase” lands and easements within the city limits or within ten miles thereof necessary to construct drains, canals and artificial watercourses, to widen or straighten existing drains and watercourses, to construct levees and embankments, to change and raise the grades of streets and alleys and generally to do all things necessary to protect the city and public and private property from flood and damage by overflow of natural and artificial watercourses. This section was amended by Laws 1947, Ch. 109, to provide that the city might acquire the necessary lands and easements 'Toy condemnation and eminent domain, under the provisions of this act or in the manner prescribed by article 2 of chapter 26 of the General Statutes of 1935 and acts amendatory thereof and supplemental thereto.” It is here noted that when, the city initiated its project in 1946, it proceeded to condemn under G. S. 1935, Ch. 26, Art. 2, as is disclosed by the several answers it filed. Other parts of the section as amended incorporated the provisions above noted as well as for cooperation with the federal government. We are not concerned with the latter. Later sections of the act provide for adoption of certain resolutions, for an engineering survey, for plans, an estimate of costs and other requirements, the engineer to make and file duplicate reports, one of which is to be sent to the state corporation commission for its examination and approval. Upon approval of the report by the governing body of the city, the division of water resources and the state corporation commission, the work may proceed, as provided in the statute. It is provided by G. S. 1949, 12-639, that the governing body of the city is authorized to appoint three disinterested householders of the city “to assess all damages to any and all prop erty that will be injured or damaged by reason of said improvement;” that in fixing damages the appraisers shall take into consideration the benefit, if any, the property would receive by reason of the improvement, and that before entering upon their duties the appraisers shall first take and subscribe an oath to faithfully perform their duties and to personally view and examine “all lots and pieces of ground, the buildings thereon, rights of way, roadbeds, bridges, culverts, depot grounds, grades, streets . . . and all other property liable to be injured or damaged by reason of said improvements” and file their written report with the city clerk. Ry subsequent sections provision is made for notice of hearing, hearing and determination and for a final order by the governing body of the city, as well as provision for appeal to the district court under conditions set forth. Later provisions concerning issuance of bonds and for special assessments are noted, but need not be set forth.
As has been noted above, the flood control statute as now amended expressly states that condemnation proceedings may be had under G. S. 1935, Ch. 26, Art. 2, as amended. Such amendments as were made to that statute were by Laws 1937, Ch. 227 and Ch. 228, and our review of the statute will be as it appears in G. S. 1949, 26-201, et seq. Under section 201 provision is made that when the governing body of any city deems it necessary to appropriate private property for enumerated purposes, it shall cause certain preliminary acts to be had and done, and after making an order that appropriation of the lands is necessary, shall file a written application to the judge of the district court, setting out a description of the lands sought to be taken and the benefit district and praying for the appointment of three commissioners to make an appraisement and assessment of damages. Under section 202 provision is made that the commissioners shall give notice of the time and place when the appraisement will be made, and that they shall “appraise the value of the lands taken and assess the other damages done to the owners of such property,” and for making of reports, and a final report, all of which shall be in writing and filed in the office of the city clerk. Under section 203 the duties of the commissioners are specified. Under section 204 it is the duty of the city clerk, upon the report being filed in his office, to prepare and deposit a copy with the city treasurer, and if there be deposited with the city treasurer for the benefit of the owner or owners the amount of the award, the treasurer shall certify the fact upon the report and pay the awards to the persons entitled. The title to lands condemned shall vest in the city upon publication of its resolution condemning the same; and upon recording the report, certified as provided, in the office of the register of deeds, the right to possession shall vest in the city. Under section 205 any aggrieved landowner may appeal from the award made by filing written notice of appeal with the clerk of the court in time and manner as set forth in the statute. Under section 206 the city is given the right, within ten days from the filing of the report, to adopt a resolution abandoning the condemnation, or to appeal therefrom, the conditions of the appeal being stated. Other sections of the statute require no present notice.
In Cow Creek Valley Flood Prevention Ass'n v. City of Hutchinson, 166 Kan. 78, 200 P. 2d 279, this court considered certain phases of the present improvement project, and in Loomis v. City of Augusta, 151 Kan. 343, 99 P. 2d 988, as modified in Foster v. City of Augusta, 165 Kan. 684, 199 P. 2d 779, considered the flood control statute above mentioned, but none of those decisions determined the questions presented in the present appeals.
Putting aside for the moment the trial court’s rulings that damages for change of grade were not recoverable under the condemnation statute nor under the flood control statute; that evidence as to a ramp as obstructing ingress and egress would not be considered in the appeals under the condemnation statute, and that evidence as to the price paid by the Yoders for their land would not be received and that evidence concerning minimization of damages would be, it is clear, generally speaking, that the trial court concluded that in condemnation proceedings all that the landowner could recover was the value of the land taken and the damages to the land not taken, and that any other recoverable damages would have to be recovered by other proceedings under the flood control statutes. Is such a conclusion warranted in view of the statute?
It was early held, and over the years the rule has been, that a municipal corporation is a creation of law and can exercise only powers conferred by law and take none by implication, and that the only power it may acquire in addition to that expressly granted is the power necessary to make effective the power granted. See State v. Hannigan, 161 Kan. 492, 498, 170 P. 2d 138, and cases cited. In the appeals before us, the only statute relied on as authorizing the city to go beyond its own limits and acquire property by gift, purchase or the exercise of eminent domain was G. S. 1949, 12-635 to 12-646. As has been pointed out at the time the city initiated the improvement, the statute authorized acquisition by “condemnation and eminent domain” without specifying the particular statute under which that right was to be exercised. The city alleged that it proceeded under G. S. 1935, Ch. 26, Art. 2, as amended. And as has been noted the flood control act has been amended to that effect.
We need not discuss the doctrine that the two statutes are in pari materia for by its terms the flood control statute made the eminent domain statute a part of it. The eminent domain statute here involved does provide that the commissioners shall “appraise the value of the lands taken and assess the other damages done to the owners of such property” but it does not specify in any detail whatever just what the items of damage may be. The flood control statute is specific. It authorizes not only acquisition of lands and easements, but the performance of specific works including change of grades and by 12-639 provides for the assessment of “all damage to any and all property that will be injured or damaged by reason of said improvement,” and for taking into consideration the benefit, if any, that said property will receive, as provided in that section.
In view of the fact that the right of eminent domain may be exercised either under the flood control act or under the condemnation act, we think it logically follows that regardless of the manner in which the right is exercised, the same standard for measuring the damages is applicable and that the standard set and the items included are those specified in the flood control act.
No purpose will be served by detailing the thirteen instances set forth in question No. 1 of the motion in appeal No. 38,060. We agree with the trial court that evidence thereon will be competent. We need not go into detail concerning the instances wherein the trial court held that certain damage would not be recoverable in ' the condemnation appeals, but would be in proceedings under the flood control act. In our opinion evidence, if otherwise competent, is receivable in the' condemnation appeals to cover all damages contemplated by the flood control statute.
We note the city’s contention that the rule is that in the absence of a constitutional or statutory provision authorizing it, an abutting property owner is not entitled to recover damages from the state, county or city because of the change of grade of an existing highway or street, in support of which Glover v. State Highway Comm., 147 Kan. 279, 292, 77 P. 2d 189, and other authority is cited. We shall not discuss the rule, its applicability or any exceptions, at any length. The flood control statute, among other things, empowers the city in making the improvement to change the grade of streets, and further provides that the landowner may recover all damage to his property injured or damaged by reason of the improvement. By reason of such provisions the rule contended for cannot be held to deny recovery here. Without elaboration, we further hold that if the erection of ramps leading to any bridges that might span the ditches dug or levees constructed, causes damages by interference with means of ingress and egress or other recoverable damage, evidence pertaining thereto is admissible.
In the Yoder case (appeal No. 38,060) we are of the opinion the trial court ruled correctly that evidence as to the amount paid by the Yoders to the Lancasters for lands involved was not admissible. While we recognize the rule contended for by the city that sale of real property under ordinary circumstances is some evidence of value, provided that the time of sale is not too remote, and that the instant sale is not a forced sale, all we know from the record is that in one transaction the Yoders purchased the lands and an assignment of Lancasters’ right in the appeal taken by them and that, under the circumstances, was not to be said to be a sale in ordinary course. The city makes some argument that the Yoders alleged the fair market value of the land was a certain amount, which is correct. The argument is that their deed bears a certain amount of revenue stamps evidencing a lesser value and that the difference represents the value of the appeal. The argument is based on matters not pleaded. Whatever may be the rule under other circumstances, we think what the Yoders paid for lands and a lawsuit cannot be said to be any evidence of the value of the lands.
In the Yoder case (appeal No. 38,060) the city alleged that the landowners could minimize their damages by the construction of an overpass or the levee provided they used certain culverts or drainpipes of certain required sizes. A question was framed as to whether the city might offer evidence to that effect, which the trial court answered in the affirmative.
We shall not review the arguments presented. The record does not disclose with any particularity whatever just how extensive any part of the proposed improvement will be. We do not propose to indulge any assumption that in constructing the improvement the city will be so remiss that any damage will be done the landowner that might or could be avoided, nor that it will fail to do all things necessary to minimize the amount of damages it must pay, or stated conversely, we are not going to assume that it will so construct the levee or other part of the improvement as to cause great damage leaving it to the landowner to minimize that damage -by doing works of construction which it may have been the primary duty of the city to do. As a trial of the appeal develops, evidence as to necessary damages may or may not become competent but we are of the opinion that prior to any hearing of the appeal an answer to the question should not have been made.
The several actions are remanded to the trial court for further proceedings not inconsistent herewith. | [
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The opinion of the court was delivered by
Cunningham, J.: The error here complained of is that the court erred in sustaining defendant’s objection to the introduction of any evidence by the plaintiff in support of his petition. The facts as disclosed by the petition, briefly stated, are these : Josephine M. Rogers was the mother of the plaintiff and of Florence H. Richards and the grandmother of Lena Richards. H. H. Richards was the husband of Florence and the father of Lena. Prior to the 5th day of January, 1899, she was, and for more than two years prior thereto had been, the owner of four lots in Wichita, Kan. On that date she died intestate, leaving as her sole heirs her two said children, owing no debts of any kind whatever. On the 4th day of December, 1896, there were filed in the office of the register of deeds of Sedgwick county deeds theretofore executed by Mrs. Rogers, conveying these lots to her granddaughter, Lena. These deeds had been executed by Mrs. Rogers upon the representation of Mr. and Mrs. Richards that they were powers of attorney for the purpose of enabling Lena to manage the property and collect the rents for Mrs. Rogers, and Mrs. Rogers thought they were such powers of attorney at the time of their execution. She was old, feeble and infirm in body and mind and trusted to, and reposed confidence in, Mr. and Mrs. Richards. She remained in possession of the property up to the time of her death and received the rents therefor, and never had any knowledge of the fact that the papers which she had signed were deeds to the property, or that such deeds had been made of record in the register’s office.
As a second cause of action, the petition further stated that, as an inducement to the making of these deed^, Mrs. Rogers was assured by the defendants that the costs incident to the administration of her estate would absorb it all, and if she would make the deeds to Lena the latter would, after her death, convey one-half of the real estate to the. plaintiff, her uncle ; that it was for the purpose of effectuating this oral agreement that these deeds were executed by her. The opening statement of counsel for plaintiff, among other things, stated that these deeds were delivered either to Lena or her father for her. Under this state of facts, did the court err in sustaining the objection to the introduction of evidence ?
If any cause of action was stated in the first part of plaintiff’s petition, it was for relief on the ground of fraud, the fraud being in obtaining the deeds under the representation that they were powers of attorney. The statute of limitations bars an action upon this ground in two years after the discovery of the fraud. These deeds had been made of public record for more than two years prior to the death of Mrs. Rogers. This court has held in Black v. Black, 64 Kan. 689, 68 Pac. 662, that the recording of instruments in public records is sufficient notice of their existence to start the running of the statutes of limitations in connection therewith.
It is contended that the facts stated in the second cause of action create a gift inter vivos or one causa mortis; or, if neither, that they show that Lena Rich ards is trustee ex maleficio of the undivided one-half of this real estate, and as such can be compelled to convey the same to the plaintiff, he being the cestui que trust, in either of which cases, this count stated a cause of action. We are compelled to disagree with counsel as to all of these views. The facts set out do not disclose a gift inter vivos, because such gift was not to take effect immediately. Nor do they disclose one causa mortis, because it was not made in contemplation of the near approach of death. (Calvin v. Free, 66 Kan. 466, 71 Pac. 823.) Nor is Lena Richards trustee ex maleficio. The trust confided in her, as alleged in this cause of action, was one to take and hold the title for the plaintiff and convey one-half thereof to him after the death of the grantor. A trust ex maleficio arises on account of the fraud or misconduct of the trustee in taking title, or by virtue of some illegal act upon his part. Such are not the facts here. The allegations are that by express agreement with Lena she was to take and hold the title to an undivided one-half of the real estate for the plaintiff, and that it was for this express purpose the deeds were executed. This trust, being thus express and not in writing, is void and unenforceable under the provisions of section 1 of the chapter relating to trusts and powers, the same being section 7875, General Statutes of 1901. (Knaggs v. Mastin, 9 Kan. 532; Ingham v. Burnell, 31 id. 333, 2 Pac. 804; Gee v. Thrailkill, 45 id. 173, 25 Pac. 588.)
As the petition showed that the bar of the statute of limitations had run upon the first cause of-action, and as no cause of action was stated in the second count thereof, the court was correct in sustaining the objection to the introduction of evidence. The judgment is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
It is contended'by counsel representing plaintiffs in error that the deed from James H. Martin to David Allen, and the contract given back by the latter to Martin, when considered together, constituted a mortgage. “We think otherwise. The deed to Allen recites that the land is encumbered by a mortgage, a judgment, and unpaid taxes. Neither the mortgage nor judgment appears from tlie writings to have been owned or held by Allen. In the agreement Allen assumed the payment of these encumbrances and the taxes, which amounted in the aggregate to $1206. The agreement recites that “now, in order to meet said claim and to pay it off to said David Allen,” Martin and wife have executed- the deed. It is further provided that Martin should have three years in which to redeem the land by paying said sum of $1206, time being of the essence of the contract.
The test in such cases is whether the grantor in the deed sustains the relation of a debtor to-the grantee. (McNamara v. Culver, 22 Kan. 661.) In the present case could the grantee, David Allen, at the expiration of the three years which was given the grantor to pay, have successfully prosecuted an action against the latter to recover the $1206 and interest? We think not. The contract between the parties negatives the existence of a debt. After the execution of the deed and contract they did not sustain the relation of debtor and creditor toward each other. The agreement expressly states that the deed to Allen was executed and delivered to him to “meet said claim and to pay it off.” The deed was given in satisfaction of the debt, computed to amount to $1206. The facts are very like those in the case of McNamara v. Culver, supra.
Parol evidence was admitted by the court to arrive at the intention of the parties, and the circumstances of the transaction were considered. The testimony was conflicting. Counsel for plaintiffs in error point out certain facts tending to show that Allen’s conduct and admissions were indicative that he stood in the attitude of a mortgagee, and that Martin regarded him as such. If uncontradicted, such evidence might have compelled a different result in the court below or here. Tike finding of the trial court is conclusive on the disputed questions.
It is contended that defendants below being tenants by sufferance no judgments for rents and profits of the land could lawfully be rendered against them.
■ The common-law rule has been abrogated by statute ' in this state. (Gen. Stat. 1901, § 3864.)
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
The Aultman & Taylor Machinery Company sold thrashing machinery to J. L. Wier, receiving in payment notes secured by a chattel mortgage on it and other property. The first note not being paid at maturity, the company took possession of the machinery, sold it at public sale, applying the proceeds on the mortgage debt, and brought replevin for the remainder of the mortgaged property. Wier defended on the ground of lack of consideration through failure of the machinery properly to do the work for which it was intended, claiming a rescission of the contract of sale. A verdict was returned for the defendant, on which judgment was rendered, and to reverse it this proceeding is brought.
A preliminary question is presented by an objection by defendant in error to the jurisdiction of this court because the summons in error, otherwise regular in form, was not signed by the clerk. Plaintiff in error has asked leave to have the summons in error amended by the addition of such signature. The question is thus presented whether a summons in error lacking the clerk’s signature is absolutely void, or merely irregular and therefore amendable. The statute (Gen. Stat. 1901 §4489)provides that a summons “shall be under the seal of the court from which the same shall issue, shall be signed by the clerk, and shall be dated the day it is issued,” and (§ 5028) that a summons in error “shall issue and be served . . . as in the commencement of an action.” The constitution contains no requirement that process be signed by the clerk but does provide (Art. 3, § 1) that “all courts of record shall have a seal to be used in the authentication of all process.” In other jurisdictions, under statutes substantially similar, the question has frequently arisen and the decisions are conflicting. (40 Cent. Dig. 2795-2797.) The case of Sharman v. Huot, 20 Mont. 555, 52 Pac. 558, 63 Am. St. Rep. 645, is a recent well-considered case holding a summons issued without the clerk’s signature to be absolutely void and incapable of amendment. Perhaps the most complete discussion of the question in any reported case is found in Ambler, Trustee v. Leach et al., 15 W. Va. 677, where, after an exhaustive review" of the authorities, a contrary conclusion was reached. In Alderson on Judicial Writs and Process, after an enumeration of the decisions on each side of the question ( §§ 39,' 40), the author says :
“Reason and the weight of the authorities are in favor of the proposition that process, otherwise in form, is not void because not signed by the clerk. This is but the enforcement of the doctrine that the' law favors substance rather than form, and will not deny substantial right to the citizen because of the misprision of an officer of state. The author is entirely satisfied to assert that an unsigned writ is voidable only, and the subject of amendment.” (§40.)
In this state it has been held that process issued without the seal of the courtis utterly void, by reason of the constitutional provision already referred to (Gordon v. Bodwell, 59 Kan. 51, 51 Pac. 906, 68 Am. St. Rep. 341), but that an execution bearing the seal of the court, although lacking the signature of the clerk, is irregular only and may be amended after its return, the proceedings had under it being thereby validated. (Taylor v. Buck, 61 Kan. 694, 60 Pac. 736, 78 Am. St. Rep. 346.) It remains only to inquire whether the rule should be the same in the case of initial, as of final, process. It has often been held that a stricter conformity to the statute is exacted in original than in any later process, but the conflicting decisions referred to cannot be reconciled upon this principle since relatively few of them turn upon it. In Lindsay v. Comm’rs. of Kearny Co., 56 Kan. 630, 44 Pac. 603, it was held that a summons lacking the clerk’s signature should be quashed on motion, but in the opinion it was noted that the summons was attacked directly and- not collaterally, the question presented being merely whether it was error to overrule the motion ; and in Taylor v. Buck, supra, it was said that the question whether such kind of writ was amend able was not presented in the earlier case, and therefore was not determined.
Since in this state the question is an open one, and elsewhere the authorities are divided upon it, we prefer to hold, as conforming to the spirit of the code and of modern practice, that the summons in this case was not void but merely irregular. There is nothing in the objection made that affects any substantial right of the parties. In Truitt v. Baird, 12 Kan. 420, it was held that if the summons in that case did not run in the name of the state, as required by the constitution, the defect was purely technical and might be disregarded. In some of the cases cited the courts have discussed with little profit the question whether the signature of the clerk authenticates the seal or the seal authenticates the signature. There is no room for invoking any such consideration here, since the constitution provides that the seal itself authenticates the writ. The signature is a mere formal requirement of the statute. The application of plaintiff in error for leave to have the summons in error amended by the addition of the clerk’s signature will be allowed, the amendment will be considered made, and the court will take jurisdiction of the case upon the merits.
The rights of the parties are to be determined in the light of a written contract or order executed at the time of the sale. Defendant denied that the sale was made under this instrument but as the jury found against him on this point the question for the present purposes is no longer open. The contract, among other provisions, including various warranties of the efficiency of the machinery, contained the following :
‘ ‘ If within six days from the date of its first use said machinery shall fail in any respect to fill this warranty, the undersigned purchasers having intelligently fol lowed the printed hints, rules and directions of the manufacturers’ written notice by registered letter shall at once, and within six days from the date of its first use as aforesaid, be given by the purchasers to the Aultman & Taylor Machinery Company, at their home office, Mansfield, Ohio, stating particularly what machine fails to fill the warranty and wherein, and if it be of such a nature that a remedy cannot be suggested by letter, reasonable time must be allowed the company to get to the machine with skilled workmen and remedy the defect, the purchasers agreeing to provide every facility for favorable operation and to render all necessary and friendly assistance and cooperation in making the machinery a practical success. It is also agreed that if a mechanical expert or other employee of the company visits said machinery in response to the notice above provided and leaves it working unsatisfactorily, the purchasers agree to give immediate notice by registered letter or prepaid telegram to the Aultman & Taylor Machinery Company, at Mansfield, Ohio, stating specifically any failure or neglect complained of and allow time for another expert to be sent to operate the machine. The foregoing notices to the Aultman & Taylor Machinery Company shall also be given even though the local agent or any other agent or employee of the company may be present and assist.'in setting up and starting the machinery at the time ,of its first use as aforesaid.”
The defendant was dissatisfied with the working of the machinery, claimed that it failed to accomplish its purpose or to fulfill the warranties, and complained to the agent of the company through whom the sale was made, one A. G. Copeland. On several occasions agents and machinists visited the machinery, made suggestions as to operating it, changed adjustments and furnished new parts. These persons, however, were either under the direction of the selling agent or of an office in Kansas City, the character of which was not defined in the evidence. To the question whether defendant had ever given written notice of defects in the machinery .to the plaintiff company at its home or Mansfield office, the jury answered: “No, but he did notify their agent, A. G. Copeland, at La Cygne, Kan., so that the Aultman & Taylor Machinery Co. did receive notice that the machine was not filling the warranty.” The question was also asked whether defendant had given written‘notice to the company at the Mansfield office that any mechanical expert or employee of the company who visited the machinery had left it in an unsatisfactory condition. The jury answered : “Yes,by letters sentfrom La Cygne, Kan., to the Kansas City office, some time in September, 1898, to the best of our knowledge.” The evidence leaves the character of the agency of A. G. Copeland beyond doubt. His authority was derived entirely from a written instrument, -which showed that he was not a general agent. Nor can it be contended that he had even apparent authority to waive any of the conditions of the contract of sale, which contained this provision:
“No agent, salesman or mechanical expert has any authority to add to, abridge or change any of the above warranties, nor to waive any of the terms or conditions of this contract, notice of failures or defects or of a return of the machine under the terms of these warranties or contract. Local agents, canvassers and traveling salesmen have no general agency powers, and are authorized only to make sales in accordance with special instructions upon forms furnished by the Company.”
Mere notice to Copeland was not sufficient to bind the company, and we find no support in the evidence for the finding that the company received actual notice through him. Nor in such- examination of the record as we have been able to make do we find any evidence that the Kansas City office constituted a general agency, or had control of the Kansas business of the company, or even that defendant sent any notice to the Kansas City office. No brief on the merits has been filed by defendant in error and our attention is not called to anything in the evidence (which covers over 350 pages) in support of the -findings in this regard. We conclude that such evidence is lacking. These considerations bring the case within the rule announced in Furneaux v. Esterly & Son, 36 Kan. 539, 13 Pac. 824, the syllabus of which reads:
“Where a machine is sold upon a conditional warranty which expressly provides that the purchaser shall have a certain time in which to test the machine, and if it fails to fulfill the warranty, the purchaser shall give the seller written notice stating wherein it fails, held, that to avail himself of the benefits of the warranty the purchaser must render substantial compliance with the agreement; and that if ho written or actual notice was given, and there was no waiver of the condition, the warranty cannot be enforced against the seller.
“Where a contract of warranty, which is executed in duplicate and one of which is retained by each of the parties, contains a provision that no agent has authority to change the warranty, it is a notice to the purchaser of a limitation upon the authority of the agents of the seller; and that they cannot waive or dispense with an express condition of the contract.”
This conclusion does not in the least conflict with the doctrine of Machine Co. v. Mann, 42 Kan. 372, 22 Pac. 417, where notice was given to an agent who had authority to sell machines and receive those which should be returned to him as unsatisfactory, and refund what might have been paid upon them. A recent case in point is Case Thrashing Machine Co. v. Ebbighausen, 11 N. D. 466, 92 N. W. 826, 69 L. R. A. 733. See, also, Fahey v. Esterley Machine Company, 3 N. D. 220, 55 N. W. 580, 44 Am. St. Rep. 554.
Another finding of the jury would require a reversal of the case. To the question, ‘‘What amount do you deduct from the notes, principal and interest, on account of the thrashing outfit and machinery taken by plaintiff from the defendant J. L. Wier?” they answered “$471.50.” This property was sold, as the 'jury elsewhere found, for $600, and there is no apparent explanation of this reply. The variation of the amount would of itself be unimportant, but the answer shows that the jury regarded the notes as in force and not as canceled by the rescission of the contract. They therefore must have reached their verdict by considering the notes as valid, but allowing defendant credit on account of damages sustained by breach of warranties sufficient to offset the balance otherwise due upon them. This was an issue not submitted to them and a verdict for defendant on such theory cannot be upheld.
It is also contended by plaintiff in error that the fact that defendant kept and used the machinery for some four months was conclusive against him. Whether this was an unreasonable time under all the circumstances was a question of fact, which.the court 'properly submitted to the jury.
The judgment is reversed and the case remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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Per Curiam,:
The petition in this action contained the usual allegations necessary for recovery upon a fire-insurance policy. The answer alleged breaches of various provisions of the policy as absolving the defendant from liability. The reply sought to avoid the effect of the defenses propounded in the answer. Upon the trial the court instructed the jury upon all the issues raised by the pleadings, and concluded by advising them that the only question left for their determination was the amount of plaintiff’s recovery. No exceptions were taken to these instructions. All the errors assigned relate to matters covered by the charge to the jury, and since this was submitted to as correct the judgment of the district court is affirmed. | [
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Per Curiam:
This was an action by Fred Orton to recover for injuries sustained while he was riding on an excursion train. The cars were greatly crowded, the seats were occupied, and many were standing in the aisles. Or-ton passed through the train, looking for a seat, and finding none he stopped in the door of a car, and while standing there a cinder struck him in the eye, causing a severe injury. The verdict was in favor of Orton, but the jury found that the engine of the train was in good repair and was supplied with the best-known appliances to prevent the escape of cinders; that the engineer in charge was both competent and skilful, and so was the fireman; and that the 'engine was being properly and skilfully managed and operated at the time the injury occurred. The findings, therefore, acquit the company of all negligence as to the construction of the locomotive and its management and operation.
The only other charge of negligence was in failing to keep closed the door of the coach wherein the plaintiff was riding. The rules of the company, it is true, required that the doors be kept closed; but the opening and closing of the doors and windows of cars are not fully within the control of the company or its employees. Passengers pass from one coach to another, and hence the doors are frequently opened; they are also frequently opened by passengers for purposes of ventilation. The mere fact that a cinder comes in at a door or window and strikes a passenger is not evidence of negligence. Cinders come into cars and into contact with passengers, whether they are sitting or standing. Orton might have been struck as readily if he had been occupying an end seat as when standing. As the appliances were of the best and the operation and management proper and skilful, the presumption of negligence does not obtain in favor of the passenger as it otherwise might have done. In view of the excellent condition and skilful operation of the locomotive, the company was no more responsible for the accident than if the cinder had come from a steam thrasher operated in proximity to the railroad. From the record, we cannot say that there was such proof as warranted a finding of culpable negligence with respect to the open door. For that reason we are of the opinion that the motion for a new trial should have been sustained, and therefore the judgment will be reversed and the cause remanded for further proceedings. | [
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Per Curiam:
The questions raised and determined in the court below were questions of fact. We must assume that it was found from the evidence that Heagler & Co. did not assume the Bay debt. This was one of the issues in the case. The existence of fraud was also found by the court, and we cannot disturb such finding; there was some evidence to support it.
The judgment will be affirmed. | [
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Per Curiam:
Herbert H. Clark was arrested on the charge of libeling F. E. Lyster. The district court quashed the information, and the state appeals. The words complained of are as follows: “In 1901 I staked and tried to teach oil crushing there to one F, E. Lyster, to my regret, loss, and sorrow,” This language is not defamatory in itself, and, as there was no allegation that it tended to expose Lyster to public hatred, contempt, or ridicule, or deprive him of the benefits of public confidence and social intercourse, the information was insufficient, under the rule stated in The State v. Grinstead, 62 Kan. 593, 64 Pac. 49.
The judgment is affirmed. | [
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Per Curiam:
We have examined the points of error-assigned by the city and find nothing substantial in any of them. The negligence of the city was a matter for the consideration of the jury, and we find sufficient evidence in the-record to justify the verdict. The instructions of the court fairly stated the law.
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
A guardian of minors, with a fund of $600 in his hands, as the entire assets of his wards, obtained from the probate court of his appointment an order authorizing him to engage in the' general-merchandise business, and to replenish the stock from time to time, as he might find it necessary, by purchases in the usual course of business. Under this authority the guardian conducted a trade amounting to many thousands of dollars annually, with the result that he finally became unable to pay the debts of the business. Under the order of. the probate court, and upon liberal representations as to the condition of the business, the guardian purchased goods of defendants in error upon the usual terms of mercantile credit. Finding it necessary to resort to legal process to compel payment of the account, defendants in error reduced it to judgment in an action against the guardian in the district court. They then presented the judgment of the district court to the probate court in a proceeding analogous to that provided by statute for the allowance of claims against the estates of deceased persons, and secured an order on the guardian for its payment. The order of the probate court not being complied with, they brought an action in the district court against the guardian and his sureties upon the guardianship bond, alleging as a breach the failure to comply with the order of the probate court to pay the judgment. A demurrer to the petition was overruled, and, after issues of fact liad been joined, a trial was had, resulting in a judgment for the creditors. The guardian and his sureties ask a reversal of the judgment upon numerous grounds, only one of which requires discussion. If there was no authority for the order of the probate court to pay the judgment previously rendered in the district court, there was no breach of the bond, and the demurrer to the petition should have been sustained.
By the constitution the probate coqrt is given such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound mind as may be prescribed by lavr. (Art. 3, § 8.) ' The legislative enactment relating to the powers of probate courts reads as follows :
“The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction: First, to take the proof of last wills and testaments, and admit them to probate, and to admit to record authenticated copies of last wills and testaments executed, proved and admitted to probate in the courts of any other state, territory, or country; second, to grant and revoke letters testamentary and of administration ; third, to direct and control the official acts of executors and administrators, settle their accounts, and order the distribution of estates; fourth, to appoint and remove guardians for minors, persons of unsound mind, and habitual drunkards, and make all necessary orders relating to their estates, tb direct and control their official acts, and to settle their accounts; fifth, to bind apprentices, and exercise such control and make such orders respecting them and their masters as the law prescribes; sixth, to hear and determine cases of habeas corpus; seventh, to have and exercise the' jurisdiction and authority provided by law respecting executors and administrators, and the settlement of the estates of deceased persons." (Gen. Stat. 1901, §1974.)
The general powers of guardians of the property of minors are thus defined:
“Guardians of the property of minors must prosecute and defend for their wards. They must also, in other respects, manage their interests, under the direction of the court; they may thus lease their lands or loan their money during their minority, and may do all other acts which the court may deem for the benefit of the wards." (Gen. Stat. 1901, § 3283.)
If the authority contended for exists, it must be found in these statutes.
It is well understood by the bench and bar of England and the United States that a guardian has no power to embark the estate of his ward in manufacturing, trade, or speculation. Nor has the guardian power to make contracts to be performed in the future which will be binding upon his ward. If such authority were to be exercised it would not pertain to the office of guardian proper. It would be a function extraordinary, conferred for a special purpose. The legislature might grant such power directly to the guardian, or it might do so indirectly by authorizing the probate court to confer it. Since conduct of the character described ordinarily constitutes a breach of trust, it has been said that an express authorization is essential; and cogent reasons maybe urged for the doctrine' that mere inference and implication from general language are insufficient.
Whether the legislature of the state of Kansas, by the mere general words of the foregoing statutes, intended to invade the settled rules of law relating to the powers of guardians and legitimate conduct theretofore regarded as reprehensible in a trustee, and intended . to brook the pursuit of financial vagaries and chimeras with the money of helpless infants, if only the probate judge may be seduced into belief in their substantiality and reality, or whether it merely intended to give the court full supervision, direction and control over the conduct of the guardian within the field of a guardian’s rightful activities, it is not necessary to decide in order to determine the rights of the parties to this suit. It may be assumed, without so deciding, that, the judgment of the district court in the first action properly established the liability of the guardian as such to the creditor. After assuming so much, however, it is plain the legislature has done nothing to invest that judgment with any added weight or effector to impose further liability on the estate than the judgment itself imports.. The probate court is given the same power to direct and control the official acts of executors and administrators that it has to direct and control the official acts of guardians. But by section ' 2892, General Statutes of 1901, special jurisdiction is given the probate court to hear and determine all demands against the estates of a deceased person, as follows :
“The probate court shall have jurisdiction to hear and determine all demands against any estate ; and a concise entry of the order of allowance shall be made on the record of the court, which shall have the force and effect of a judgment.”
By section 2891, General Statutes of 1901, special provision is made for the establishing of demands by the judgment or decree of a court of record, as follows :
“Any person having a demand against an estate may establish the same'by the judgment or decree of some court of record, in the ordinary course of proceeding, and exhibit a copy of such judgment or decree to the probate court; but the estate shall not be liable for costs in any such proceeding commenced within one year from the date of the letters of administration-.”
By various sections of the statute an elaborate and intricate procedure is provided for establishing all claims against such estates. All such provisions are absent from the statutes governing the subject of guardian and ward. Evidently the legislature intended to inhibit proceedings in the probate court by creditors to establish claims arising under contracts with the guardian, against the estates of infant wards, and intended to leave such claimants to pursue the courses open to them at common law. The creditors of the guardian had no right, therefore, to besiege the probate court with their claim, and it was a matter of -pure supererogation on the part of the probate court to entertain the application, and to order the claim paid. That order could create or impose no duty on the guardian. Failure to comply with it was not a breach of the guardianship bond, and that bond, given primarily for the protection of mibor children, is not a resource of the creditor by virtue of such order.
By another cause of action recovery was sought on the ground that the guardian’s purchases were in excess of his authority. If so, clearly the sureties on his -bond are not liable.
The judgment of the district court is reversed, with direction to sustain the demurrer to the petition.
All the Justices concurring. | [
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Per Curiam:
This action was brought in justice’s court by George Groenmiller against Jacob Kaub to recover damages alleged to have been sustained by plaintiff in consequence of a trespass committed by the chickens of defendant upon the real estate of plaintiff. At a trial in justice’s court, it developed that Mahlon Groenmiller, a son of plaintiff, was joint owner and user of the premises with his father. The bill of particulars was amended, making him coplaintiff with his father, and judgment was obtained in justice’s court in favor of plaintiffs in the sum of $50 and costs. Defendant appealed to the district court. Upon a trial in the district court, at the conclusion of the evidence of plaintiff, a demurrer was interposed by defendant upon the following grounds, as shown by the record: ( 1) That the evidence did not show a cause of action, ánd (2) that it showed a misjoinder of parties plaintiff.
Pending decision of this demurrer, plaintiffs asked and obtained leave to amend their bill of particulars, increasing the amount of damages claimed to the sum of $101. To the making of this amendment there was no objection. Thereupon the court sustained the demurrer to the evidence and entered judgment in favor of defendant for costs. Plaintiffs bring error.
The evidence is not in the record. It is recited in the record: “And thereafter, at the regular January term of said court for the year 1902, this cause came on for trial, and the plaintiffs introduced evidence tending to prove all the allegations of their bill of particulars and to show that the amount of damages they had sustained by reason of the facts in said bill of particulars alleged amounted to not less than $101.”
It is further recited in the record that both father and son testified that the son was joint owner, with the father, of the premises alleged to have been damaged, and jointly interested in the use thereof; that before the action was commenced the son had transferred his claim for damages to the father, without consideration, and was not interested in the subject-matter of the action. It is further stated in the record that “no further or other evidence was offered by either party in this action.”
In this condition of the record, was the demurrer to the evidence properly sustained ? It is insisted that the ruling was correct, because the evidence showed a misjoinder of parties plaintiff. This, however, if true, would not justify the sustaining of a demurrer to the evidence and the entry of judgment in favor of defendant. Such defect cannot be reached by a demurrer to the evidence. ’
Again, it is contended that as the action was brought in justice’s court to recover damages for trespass upon real property, $100 was the limit of the justice’s jurisdiction, and in consequence the amendment in district court increasing the damages claimed to $101 deprived the district court of jurisdiction, as the case was appealed to that court from the justice’s court.
As stated, no objection was interposed to the making of the amendment. The question now sought to be raised was not presented to the district court, but is first attempted to be raised in this court. The demurrer to the evidence did not bring this question before the trial court. No objection having been made to the amendment in the justice’s court, and the question now sought to be raised not having been presented to the district court, it cannot now be relied upon to support the ruling made. (Mo. Pac. Rly. Co. v. Lea, 47 Kan. 268, 27 Pac. 987; Telegraph Co. v. Moyle, 51 id. 203, 32 Pac. 895.)
In the present condition of the record, the ruling upon the demurrer to the evidence was error requiring a reversal. | [
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The opinion of the court was delivered by
Wedell, J.:
The questions involved grow out of habeas corpus proceedings. Petitioner first filed a petition for a writ in the district court of Sedgwick county alleging he was illegally restrained of his liberty by R. H. Hudspeth, warden of the state penitentiary, his deputy, and by Robert S. Gray, sheriff of Sedgwick county. Following the hearing the writ was denied and petitioner appealed to this court. Thereafter petitioner also instituted an original proceeding for a writ in this court. The same legal questions are presented in each proceeding. The facts in the proceeding filed originally in this court are the same as those contained in the appeal. Both cases may be disposed of in one opinion.
On May 12, 1949, petitioner was convicted, pursuant to a plea of guilty, of operating a gaming house in the city of Wichita contrary to the provisions of G. S. 1949, 21-915. His plea was entered before the late Honorable I. N. Williams, judge of the fourth division of the district court of Sedgwick county. Petitioner was sentenced to serve a term of imprisonment and hard labor in the state penitentiary for a term of not less than one year nor more than five years, as provided by G. S. 1949, 21-915. On the same day the same district judge paroled petitioner for a period of two years, “. . . subject to the approval of the Parole Board of the 18th Judicial District,” and subject to the provisions that he violate no laws of the United States, state of Kansas, or the city of Wichita and subject to other conditions not here material.
On September 12, 1950, sixteen months after the parole had been granted, petitioner filed a motion in the third division of the district court of Sedgwick county for a release from the parole previously granted. The order of that date made by the Honorable Clair E. Robb, judge of the third division, recites petitioner was released and fully discharged from the parole originally granted. On September 25, 1950, the parole board of the eighteenth judicial district, upon motion of the Honorable George Austin Brown, judge of the fourth division, in which division petitioner was originally sentenced and paroled, considered the discharge and ordered that it be not approved. The record discloses that on the following day Judge Clair E. Robb of the third division entered an order on his own motion setting aside his former order of discharge on the ground it was made through “error and mistake” and for the further reason, “. . . the Judge of the Third Division . . . did not know what was contained in said order of discharge.”
On the same day, September 26, 1950, Judge George Austin Brown of the fourth division, revoked the parole of the petitioner and directed the sheriff to apprehend him and execute the sentence previously rendered in the fourth division of the court on May 12, 1949. A commitment was issued directing the sheriff of Sedgwick county to execute the sentence. Petitioner was delivered into the custody of the warden of the penitentiary where he remained until ordered to appear in the district court of Sedgwick county to stand trial on another criminal charge in the district court of that county. While in Sedgwick county he filed the first mentioned petition for a writ.
Between the dates of the order discharging petitioner and the subsequent order setting aside the discharge and the order revoking the parole petitioner was also arrested by a deputy United States marshal on a federal warrant, was arraigned before a United States commissioner and was released on bond. The district court of Sedgwick county found there was no evidence the federal government or any of its agents or officers had or were demanding petitioner’s return to their custody. Petitioner was remanded to the custody of the warden of the penitentiary.
The petitioner contends he is unlawfully restrained of his liberty in that he is no longer in the legal custody of the warden of the penitentiary or the sheriff of Sedgwick county. He admits he was paroled subject to the approval of the parole board; he was paroled on the condition he violate no laws of the United States, the state of Kansas or the city of Wichita; that he was charged with the commission of other offenses prior to the expiration of his two year parole.
Petitioner, however, argues he obtained an absolute discharge prior to the time he was charged with the commission of a federal, or any other, offense, and that after his absolute discharge no parole existed which could be violated or revoked. He asserts an absolute discharge is something more than a release from parole, that it terminates the sentence and constitutes a remission of the remaining portion of the sentence. That such is the general effect of a valid absolute discharge may be conceded. (67 C. J. S., Pardons, §26.)
Respondents’ first answer to petitioner’s contention is no valid-absolute discharge was granted. In support of that position respondents remind us the instant discharge was issued sixteen months after the parole was granted. They rely on G. S. 1949, 62-2209, which pertains to absolute discharges and to the particular portion thereof relating to a discharge from parole in felony cases, which reads:
“No person paroled under the provision of section 5 [62-2205] of this act shall be granted an absolute discharge at an earlier period than two years from the date of his parole. . . .”
G. S. 1949, 62-2205 pertains to bonds required for paroles issued under provisions of G.. S. 1949, 62-2203 in felony cases.
Petitioner admits he was paroled under G. S. 1935, 62-2203, but emphasizes that this parole section was amended in June, 1949, prior to his discharge in September, 1950. He argues that such section as amended conflicts with G. S. 1949, 62-2209 and repeals the latter section by implication.
It may be conceded that G. S. 1935, 62-2203 as amended conflicts with G. S. 1949, 62-2209 in part. One portion of the last mentioned section provides:
“. . . nor shall such parole continue for a longer period than ten years. . . .”
G. S. 1935, 62-2203 as amended, in part, reads:
“The period of parole, together with any extension thereof, shall not exceed five years.”
It immediately is observed those provisions in both sections, pertain to the maximum period of a parole and not to the subject of an absolute discharge. The question now under consideration does not pertain to the maximum period of parole. The question is within what time an absolute discharge may be granted. We find no conflict in the statutes on that subject. The question is governed by the statute which relates specifically to the subject of absolute discharge and not by a statute which pertains generally to the subject of paroles and their termination for violation of terms or conditions thereof. We find no repeal by implication of the provision which prohibits an absolute discharge at an earlier period than two years from the date of the parole.
It is elementary that repeals by implication are not favored. It is true, as petitioner contends, that where successive acts of the-legislature covering the same subject matter are in irreconcilable conflict with each other, the last expression of the legislative will prevails. (Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009; Board of Education v. Turner, Auditor, 116 Kan. 735, 229 Pac. 74.) Here, as previously indicated, there is no repugnancy with respect to the specific subject of an absolute discharge. It is also well tó note that G. S. 1949, 62-2203 as amended was not an act complete in itself and did not purport to cover the-entire field of both paroles and absolute discharges. Moreover a .later act on the same general subject repeals provisions of a former act by implication only to the extent of repugnancy with the later-act. (Board of Education v. Turner, Auditor, supra.) It follows the earlier section pertaining to an absolute discharge was not superseded by the later amendment of another section pertaining only to paroles and was not repealed. (50 Am. Jur., Statutes, § 543.)
Upon examination of the records it was found the instant discharge was granted by the judge of the third division within sixteen months from the date of parole in direct violation of a specific-statutory prohibition. The parole board refused to approve the-discharge. The judge of the third division set aside his former-order of discharge. Thereafter the judge of the fourth division, in which petitioner was sentenced and paroled, revoked the parole. We think the writ was properly denied.
Respondents insist the writ was properly denied on another ground. There may be merit in the contention but in view of the record we prefer to rest our decision on the ground already stated.
The writ is denied. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action to enjoin the collection of a special-improvement tax levied against the abutting property of the plaintiffs for curbing and guttering a street in Kansas City, Kan. The injunction was denied by the court below and plaintiffs bring error. There is but one question in the case, which is stated in the plaintiffs’ brief, as follows :
“We contend that the provision in the contract requiring the contractor to agree to maintain and keep in repair the pavement for a period of ten years cast upon the abutting owners the costs of that maintenance contrary to law, and that there is no provision by which the cost and expense of keeping the pavement in repair can be separated from the cost of making the whole improvement.”
It is true that in the contract for paving and guttering there was embraced this agreement: “It is agreed that the contractor shall maintain and repair-said pavement for ten years from its completion.”' Presumably this agreement on the part of the contractor enhanced the cost of the work. It is an agreement to maintain and repair the paving and guttering-as against all injuries, and not alone as against deficient workmanship or material. In Kansas City v. Hanson, 60 Kan. 833, 58 Pac. 474, this court held that it was competent to embrace in the contract for paving and guttering the provision that the contractor should keep the same in repair for a given length of time as-against all defects which might become necessary-growing out of defective work or material, and inferentially that, had the contract required the contractor to make all repairs for injuries arising from any cause, the levy would have been invalid because it cast upon the property-owner burdens which the public at large-should beax~. This decision, however, was based upon a contract made prior tol899. By section 3, chapter 81, Laws of 1899, the mayor and council of cities of the-first class in this state are given specific power to require a contractor putting in curbing, guttering or paving to-maintain and repair the same for any such time as they should deem proper, and in payment thereof levy an assessment for the full cost of such paving, including its maintenance and repair. The contract-in the case at bar was made subsequently to the taking effect of this act and is clearly within its terms.
We think the act is within the constitutional power of the legislature. Inherently, the repair of a sidewalk, or curbing and paving, is no more a part of the duty of the general public, or no less a part of the duty of the abutting lotowner, than its making in the first instance, and the right of the legislature to confer upon municipalities the power to require the abutting lot-owner to pay for the first cost of such improvement has long since passed beyond the realm of dispute.
We find no ground upon which to reverse the judgment of the lower court. It will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
Mary L. and James N. Graham executed a mortgage to Henry M. Vaill on land which they afterward transferred to John T. Jacobs. Vaill brought an action to foreclose the mortgage, making Jacobs a defendant, at a time when, upon the face of the papers, the statute of limitations had run against the mortgage note. To avoid the effect of the statute, the petition alleged that since the note became due the makers had at all times been absent from the state. Jacobs filed a pleading designated as an answer and demurrer. It consisted of an answer, in which was incorporated a statement that defendant demurred to the allegations of the petition regarding the absence of the mortgagors from the state. The answer included an unverified general denial and a claim of ownership of the land. No ruling was made upon this purported demurrer as such. At the trial the case was submitted upon the pleadings, and judgment was rendered for the plaintiff. Jacobs brings this proceeding to reverse-the judgment.
As upon the face of the note the statute of limitations had barred the action, it was necessary for the plaintiff, in order that his petition might state a cause of action, to plead the absence of the makers from the state. The allegations of such absence being put in issue by the general denial, the burden of proving it was upon the plaintiff. No evidence having been offered by either party, judgment should have been given to the defendant. Defendant in error seeks to avoid the force of these considerations by claiming that defendant had demurred to these allegations, and that, the demurrer not being withdrawn but remaining of record, it admitted their truth for all purposes. Several authorities are cited in support of this position, especial reliance being placed on a statement in Boone on Code Pleading, section 42, based upon the case of Cutler v. Wright, 22 N. Y. 472. In that case it was held that a demurrer to a pleading, overruled and not withdrawn, is an admission of the facts stated, not only for the purpose of the argument but as evidence on the trial of the issue.
Assuming that such a question arises in this case, the contention is not well founded. Under our practice, a demurrer admits nothing except for the purpose of determining the legal effect of the facts stated. The theory that if a demurrer, upon being overruled, is not withdrawn it remains an admission of record holds good only where further pleading is required to raise an issue of fact and is omitted. Then the admission really results from the failure to deny the allegations rather than from the fact of the filing of the demurrer. (Brown v. Kirkbride, 19 Kan. 588 ; Bliss, Code Pl., 3d ed., §418; 6 Encyc. of Pl. & Pr. 334-338.) In the case of the overruling of a demurrer to a reply, no further pleading being required or permitted, the statute expressly provides that the demurrer shall not be held to admit any of the facts alleged in the reply for any purpose other than to determine the sufficiency thereof. (Civil Code, § 128 ; Gen. Stat. 1901, §4562.)
It is not apparent upon what theory the defendant sought to demur to certain specified allegations of the petition or to incorporate such a demurrer with an answer, but whatever else may have been the effect of this anomalous pleading it did not dispense with the necessity for plaintiff to prove his allegations.
The judgment is revei’sed, and the cause remanded with directions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
These proceedings were brought to obtain a review of a ruling of the district court refusing an application for a writ of error coram nobis. On May 17, 1901, Tolbert Hamlin was convicted upon a charge of statutory rape and the sentence imposed was imprisonment in the penitentiary for a term of ten years. Upon an appeal to this court the judgment of conviction was affirmed. (The State v. Hamlin, 64 Kan. 888, 68 Pac. 1133.)
In his petition for the writ he alleged that two members of the jury that found him guilty stated upon their voir dire that they had not formed or expressed an opinion on the merits of the case and had no prejudice against him. There was a further statement that he believed that they swore falsely in that examination, as they had formed and expressed an opinion which was adverse to the defendant, and had stated in substance that defendant ought to be hung for the crime with which he was charged. There was a further averment that he had no knowledge or means of knowing that these jurors were prejudiced against him until four months after the conviction, when he learned of it. The trial court rightly held that the averments of the defendant, accepted as true, did not entitle him to the extraordinary remedy sought.
Coram nobis is available as a remedy in this state, but not to the extent that it was at common law. The code specifically provides for the correction of errors in the trial court, and any errors or matters which may be corrected on motion in that court, or upon appeal in this court, cannot be made the grounds of an application for a writ of coram nobis. It was said in Asbell v. The State, 62 Kan. 209, 212, 61 Pac. 690:
“Our code provides how errors may be corrected in the courts in which they occur, and to the extent that provision is so made it is necessarily exclusive of common-law writs and procedure. This writ, instead of superseding the .statutory provisions, is only em ployed in aid of them, or where the statute fails to afford a remedy.”
The qualification of jurors was one of the matters which was tried and adj udicated in the district court; and the rulings of trial courts on these questions are frequently the subjects of review in this court. The qualification of the two jurors alleged to have been disqualified was considered by the trial court and its determination was open to review and reconsideration in that court on a motion for a new trial. At common law no new trial was authorized or allowed in cases of felony, and hence the writ of coram nobis was the only method of correcting a matter of fact. The procedure provided by our code largely supersedes that writ, and a question of fact, such as the qualification of a juror, adjudicated in the district court, and open to correction upon a motion for a new trial or upon appeal here, if error be made, does not fall within the scope of the common-law writ, although the question may have been wrongly decided.
We agree with counsel for plaintiff in error that if the jurors had preconceived opinions on the merits of the case which they had publicly expressed they were totally disqualified to act in the case, and if this matter had been brought to the attention of the court as the statute provides it would havb afforded sufficient ground for a new trial. Plaintiff says that he was deceived and misled by the false statements of the jurors when they were examined as to their qualifications, and therefore he had a right to ask for this unusual remedy. The statements, however, if false, afforded no greater reason for the employment of this remedy than if the witnesses who testified against the defendant had given false evidence as to his guilt. In Asbell v. The State, supra, it was said:
“The remedy cannot be invoked on the ground that an important witness testified falsely about a material issue in the case ; nor can newly-discovered evidence, going to the merits of the case, be used as a basis for the writ.”
See, also, The State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 18 L. R. A. 838, 34 Am. St. Rep. 141; Dobbs v. The State, 63 id. 321, 65 Pac. 658, and Asbell v. The State, supra, and cases there cited.
The rulings of the court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action of replevin. One Goggerty was indebted to the receiver of the State Bank of Circleville. An action was brought on the clairp, followed by a writ of attachment, under which plaintiff in error, who was sheriff, levied on ten horses claimed by defendants in error to have been purchased by them from Goggerty three days before they were seized on the attachment writ. The horses were de tained at Circleville by the sheriff for two or three days, when they were replevied from him in this action by defendants in error. They .recovered judgment for the possession of the horses, together with damages for their detention in the sum of sixty-five dollars'.
Circleville is a town about ten miles west of Holton, on a line of railway which runs through both towns eastwardly to Kansas City. The testimony showed that it was the intention of defendants in error to ship the ten horses which were attached in a car to Kansas City, and to fill out the car-load with fifteen other horses belonging to them which were at the time kept in Holton. The petition alleged, as a ground for special damages,-that plaintiffs below—
“were also compelled to hold, at their own cost and expense, the other horses so bought by them and which they expected and intended to ship in car-load lots with the horses in question, and were compelled to and did pay out for feed bills and for the care and attention to the other horses so purchased to ship with the horses in question, . . . the sum of fifty dollars.”
Defendant below objected to proof of this item of damages. The objection was overruled. The trial court instructed the jury that it was proper for them to consider as an element of damage the testimony showing that plaintiffs below had made arrangements to ship the horses attached from Circleville to Holton in a railroad-car ; that after the car arrived at Holton it was to be filled with fifteen other horses, all to be shipped to Kansas City; and that by reason of the detention of the ten horses they were prevented" from shipping the fifteen'horses at the time, and put to the expense of caring for, keeping and handling said fifteen horses until they could by reasonable diligence make other arrangements for'shipping them. ' '
We are well convinced that the admission of the testimony referred to and giving the instruction based thereon was error. The claim of special damages was too remote, -contingent, and speculative. The possibility that defendants in error might have desired or arranged to ship fifteen other horses to Kansas City with those in controversy could not -have been anticipated by the sheriff when he made the seizure. Suppose the fifteen horses had, by reason of the delay in shipment, contracted a fatal disease and died ; their value could not have been recovered from defendant below under any rule of the law of damages. (1 Sedg. Dam., 8th ed., § 138 ; Palmer v. Meiners, 17 Kan. 478 ; Jameson v. Kent, 42 Neb. 412.)
The motion to dismiss the proceedings in error must be denied. The extension of time to make a case for this court “to sixty days” we construe to mean the same as if the word “to” had been omitted.
As the receiver did not ‘ ‘ appear at the trial and take part in the proceedings,” it was not necessary that he be served with the case-made. (Gen. Stat. 1901, §5020.)
The judgment of the court below will be reversed, and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
At the time the written agreement was made on which this action was based, defendants in error, as promoters and stockholders of the Kansas; Oklahoma Central & Southwestern Railway Company, had laid out a right of way from Caney, in Montgomery county, Kansas, to Bartlesville, in the Cherokee nation, and a line from the latter town to Collinsville, a distance of about thirty-five miles, and had done some grading along the route. They were prosecuting the work under the rights of way granted by acts of congress referred to in the statement. The amended petition of plaintiffs below contains this allegation with reference to the contract between the parties :
“ That it is not definitely stated in said writing how many miles of said railway were to be constructed by defendant, nor when; whereas, it was in fact understood and agreed that thirty-five (35) miles should be built, and completed, within twelve months of the time when 85 per cent, of said capital stock of said corporations had been delivered to defendant by plaintiffs, and other things done as in said writing enumerated, and that the balance of said railway, and the branches thereof mentioned in said last-named act of congress, should be built and constructed within the time fixed for the completion thereof in said act of congress.”
To remove the alleged indefinite terms in the contract, oral testimony was admitted by the trial court, confined mainly to conversations between the officers of the Atchison company and the plaintiffs below, at and before the time the writing was signed, wherein the former stated, in effect, that all concessions and donations received on lines of road built under the authority of the acts of congress mentioned, beyond the stipulated thirty-five miles, should go to the-plaintiffs.
It was the contention of plaintiffs below that the line which the Atchison company aided in building from Guthrie to Pawnee, a distance of 100 miles, known as “The Eastern Oklahoma railway,” and for the building of which concessions were received, was constructed along a route provided for in the acts of congress granting the right of way to the Kansas, Oklahoma Central & Southwestern Railway Company, of which they were stockholders, and, therefore, under the terms of the contract of sale sued on, after its meaning was made certain, that plaintiffs below were entitled to such concessions, aids, and donations. The exact language employed by the parties in the written contract was this :
“The Atchison company agrees that within twelve months of the transfer and delivery to it of not less than eighty-five per cent, of the capital stock of the Oklahoma companies, and transfer to it or payment and satisfaction of all outstanding indebtedness and other obligations of the Oklahoma companies, and any liens or encumbrances upon their property, it will complete or build, or cause to be built, at least thirty-five (35) miles of its railroad, from the junction near Bartlesville, Indian Territory, towards Collinsville, Indian Territory, and cause the Oklahoma companies, and each of them, to assign and transfer to the stockholders, the parties of the first part herein, all right, title and interest of said companies, and each of them, in or to any aids, concessions or donations obtained along the lines of railroad of said companies as constructed and described in said railway-extension bill.”
It is not alleged that the words of the instrument are susceptible of two different constructions, or are not intelligible, the charge being that “it is not definitely stated in said written contract how many miles of said railway were to be constructed by said defendant, nor when.” We do not think the language of the contract is subject to the criticism made of it with respect to the maximum number of miles of road to be built. It was for an increase of this expressed maximum that plaintiffs below called extraneous testimony to their aid.
The words used convey to our minds a definite and clearly expressed refusal of, the Atchison company to bind itself to build, or cause to be built, more than thirty-five miles of railroad along the route described in the railway-extension bill. The thirty-five miles of road which the Atchison company agreed with the stockholders should be constructed was built along the line described in the railway-extension bills in compliance with the contract. The complaint of the plaintiffs below was that the Atchison company built 135 miles of road under the same grants from congress, and that the aids and donations received along the last 100 miles belonged to them.
There is no claim that plaintiffs did not get the aids and donations along the thirty-five miles from the Kansas state line south, but the action was brought to recover the value of the concessions received on the line of road from Guthrie northeast to Pawnee, a distance of about 100 miles, alleged to have been built by the Atchison company under the name of the Eastern Oklahoma Railway Company.
Conceding that the road from Guthrie'1 to Pawnee was constructed and owned by the Atchison company, and that all donations and aids went to it, yet, in order to recover for a breach of the contract, Truskett and his associates must show that by its provisions such aids and donations belonged to them. They cannot do this by enlarging the terms of a written instrument which is not ambiguous or of doubtful meaning, resorting to parol testimony to that end. The mere assertion by a party to a written contract that uncertainties and ambiguities exist in it will serve no purpose when, by a perusal of the writing, the court can find no equivocal language employed.
Again, the writing is sought to be reformed by parol testimony in respect to the time of performance of those things which it is alleged that the Atchison company agreed to do as shown aliunde the contract. It is averred that the limitation of twelve months in which it stipulated to build the road a distance of not less than thirty-five miles should be extended beyond that time as to the number of miles it built between Guthrie and Pawnee to a time limited only by the date for completion, fixed in the last act of congress. This would be a violent wresting of obvious language out of the written agreement, and substituting therefor words which the parties themselves were careful not to use. The rule of law applicable to the case is old and familiar. It was well stated in Naumberg v. Young, 44 N. J. L. 331, 339, 43 Am. Rep. 380, as follows :
“The only safe criterion of the completeness of a written contract as a full expression of the terms of ■the parties’ agreement is the contract itself. When parties have deliberately put their mutual engagements into writing in such language as imports a legal obligation, it is only reasonable to presume that they have introduced into the written instrument every material term and circumstance; and, consequently, all parol testimony of conversations held between the parties, or of declarations made by either of-them, whether before or after, or at the time of the completion of the contract, will be rejected. 2 Tayl. Ev. §1035.”
See, also, Thisler v. Mackey, 65 Kan. 464, 70 Pac. 334; Ehrsam v. Brown, 64 id. 466, 67 Pac. 867 ; Getto v. Binkert, 55 id. 617, 40 Pac. 925; Assurance Co. v. Norwood, 57 id. 610, 47 Pac. 529 ; Milich v. Armour, 60 id. 229, 56 Pac. 15 ; Trice v. Yoeman, 60 id. 742, 57 Pac. 955 ; Wilson v. Jones, 48 id. 767, 30 Pac. 117; Drake v. Dodsworth, 4 id. 159 ; Trustees of Southampton v. Jessup, 173 N. Y. 84, 65 N. E. 949 ; United Press v. New York Press Co., 164 N. Y. 406, 58 N. E. 527, 53 L. R. A. 288 ; Tracey v. The Union Iron Works, 104 Mo. 193, 16 S. W. 203. In the last case cited (p. 199) it was said:
“We may, however, properly remark that the adoption of the modern practice, admitting as witnesses the parties directly interested in the action, seems to add a cogent reason to those existing at the common law for a close adherence to the rule under discussion. If the uncertainty of ‘slippery memory’ furnished a ground for excluding such verbal testimony in the days of Lord Coke (Countess of Rutland v. Earl of Rutland [1604], Coke’s Reports, part 5, 26a), how much stronger reason for such exclusion to-day, when the influence of self-interest is so likely to render the memory of litigating parties more ‘slippery’ than was that of the witnesses of olden time.’’
The judgment will be reversed, with directions to the court below to sustain the demurrer to the evidence.
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The opinion of the court was delivered by
Burch, J. :
S. H. Durland < and Debbie Durland were married October»2, 1870. On June 22, 1901, the district court of McPherson county rendered a de cree divorcing them. They made an amicable adjustment of their property-rights and the court adopted their agreement in that respect as a part of its judgment. In this manner S. H. Durland became obligated to pay to Debbie Durland the sum of $2000 in money within a stated period of time. The journal entry of judgment contained the following provision, placed there to comply with section 8, chapter 107, Laws of 1889 (Gen. Stat. 1901, §5142) :
“This decree was rendered Saturday, June 22, 1901, and does not become absolute and take effect until the expiration of six months from said date.”
No notice of appeal from this judgment was filed by either party. Prior to September 2,1901, S. H. Durland paid to Debbie Durland the full sum of $2000 required of him. On that day she died, intestate, leaving surviving her a number of children, the fruit of the marriage, and with $1755 of the money received from S. H. Durland unexpended and in her possession. An administrator of her estate was duly appointed, after which S. H. Durland undertook, by proceedings in the probate court, to establish his right to the money Debbie Durland had left. Defeated there, he appealed to the district court. Again he suffered an adverse judgment, whereupon this proceeding in error was commenced to reverse the judgment of the district court.
S. H. Durland claims all the money Debbie Durland left as his own, upon the theory that the title to it would not change until the decree under which it was paid became absolute by the expiration of the six months’ period fixed by the decree itself. But in any event he asserts title to one-half the money under the statute of descents and distributions, as Debbie Durland’s surviving husband, upon the assumption that the relation of husband and wife was not dissolved by the decree of divorce but continued to exist until Debbie Durland’s death, because that decree had not then become absolute or taken effect.
The solution of the problem presented depends upon a proper interpretation of the provisions of the constitution and statutes of this state upon the subject of divorce. Under the territorial organic act extending the legislative power of the governor and legislative assembly to all rightful subjects of legislation, the legislature of the territory of Kansas passed many acts dissolving the bonds of matrimony between husbands and wives. According to the weight of judicial decision, the consensus of opinion among the members of the legal profession and the general legislative practice of the country such acts were valid as rightful exhibitions of legislative power. (Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654.) When a constitution for the state was framed the power to grant divorces was taken away from the legislature and vested in the district courts, but the exercise of such power by the courts was expressly made subject to regulation by law.
“All power to grant divorces is vested in the district courts, subject to regulation by law.” (Const, art. 2, §18).
The word “regulation” is of broad signification, and in the absence of restrictive words the power granted must be regarded as plenary over the entire subject. The causes for which a divorce may be granted relay be prescribed, and none other will suffice. Rules of procedure to be followed by the courts in granting relief for the causes named may be established, and no other course may be «pursued. The rights, duties and obligations of the parties may be fixed and their social status determined as a consequence of divorce, and so far as this is done it is conclusive. The period for which a breach of matrimonial duty must be endured before an action may be brought may be ordained. The conduct of the cause may be prolonged and the ultimate effect of the decree postponed. And since a judgment of divorce is, in the absence of some countervailing law, self-executing, the legislature may impose upon the judgment itself such limitations as shall effect a stay. What declarations then has the legislature made-respecting the subject in review?
In the revision of the statutes made in 1868 the subject of divorce and alimony was given a place in the code of civil procedure, section 647 of which was as follows:
“A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it was granted in or to the property of the other.”
Such judgments were reviewable by proceedings in error commenced within three years under the general provisions of law, but no method of staying them was provided. In 1881, section 647 of the code of 1868 was'amended to read as follows :
“A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it was granted in or to the property of the other; and no proceeding for reversing or vacating the judgment or decree divorcing said parties shall be commenced unless within six months after the rendition of said judgment or decree, and during said six months and the pendency of said proceeding for reversing or vacating said judgment or decree it shall be unlawful for either of. said parties to marry, and any person so marrying shall be deemed guilty of bigamy; provided, such decree shall be final; and no proceedings in error to the supreme court shall be allowed or taken unless a notice of an intention to prosecute such proceeding in error be given in open court and noted on the journal of the court, within three days after the entry of the decree or judgment, and the petition in error and transcript be filed in the supreme court within three months after the rendition of such judgment or decree.” (Laws 1881, ch. 126, § 1.)
Section 2 of the same act reduced to one year the time within which proceedings for reversing judgments generally might be commenced. In 1889 the present law, purporting to amend section 647 of the code of 1868, was enacted, sections 6, 7, and 8 of which are as follows :
“Sec. 6. That section 647 of chapter 80 of the General Statutes of 1868 be amended so that the same shall read as follows: A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it was granted in or to the property of the other, except in cases where actual fraud shall have been committed by or on behalf of the successful party. Every judgment of divorcement granted by the district court shall be final and conclusive, unless appealed from within the time and in the manner herein provided. A party desiring to appeal from a judgment.granting a divorce, must within ten days after such judgment is rendered file a written notice in the office of the clerk of súch court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment; and unless such notice be filed no appeal shall be had or taken ■ in such cause ; if notice be filed as aforesaid, the party filing the same may commence proceedings in error for the reversal or modification of such judgment at any time within four months from the date of the decree appealed from, and not thereafter; but whether a notice be filed as herein provided, or not, or whether proceedings in error be commenced as herein provided or not, it shall be unlawful for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement; and if notice be filed and proceedings in error be commenced as hereinbefore provided, then it shall be unlawful for cither party to such cause to marry any other person until the expiration of thirty days from the day on which final judgment shall be rendered by the appellate court on such appeal; and every person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage be absolutely void.
‘ ‘ Sec. 7. Every person convicted of bigamy, as such offense is defined in the foregoing section, shall be punished by imprisonment in the penitentiary for a term of not less ¿than one year ñor more than three years.
“Sec. 8. Every decree of divorce shall.recite the day and date when the judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of' six months from said time.” (Laws 1889, ch. 107; Gen. Stat. 1901, §§5140-5142.)
This act is assailed as unconstitutional because it passed over the 1881 amendment of section 647 of the code of 1868, and again made the original section the basis of further legislation. This, however, may be done. (Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274.)
What then is the meaning of this expression of legislative will? Blackstone’s first rule with regard to the construction of statutes — to consider the old law, the mischief and the remedy, (1 Wend. Bla. Com. 87) has an especially satisfactory solvent effect upon the difficulties of this controversy.
Under the law of 1868 the pronunciation of the de cree ended the marriage relation, and left the parties free to form other alliances at once. If, however, at any time within three years either party should form a new and virtuous attachment the prospect of an advantageous marriage might be defeated through the litigiousness of the former spouse in commencing a proceeding in error. And if, within three years, an honest remarriage should take place, and the decree of divorce should afterward be reversed upon a much delayed and essentially vexatious proceeding in error, very dis tressing consequences would be certain to ensue. Besides this, the matrimonial relation was always subject to degradation through the proneness of unfaithful spouses to break it up for the purpose of an impetuous union with some intruder upon its sanctity. To meet these conditions the statute of 1881 waspassed. Under it the divorce operated as a dissolution of the marriage contract as to both parties. The decree was final unless notice of an intention to prosecute error was given within three days; such proceeding in error was required to be commenced within six months, and the petition in error and transcript to be filed within three months; and during a period of six months from the rendition of the judgment, and as much longer as the proceeding in error remained pending, the parties were forbidden to remarry.
The prohibition upon marriage within six months, however, was the only limitation upon the judgment as an utter annihilation of the former marital status. If no appeal was taken the ties which had bound the individuals together were absolutely and unqualifiedly broken asunder. The parties were each as fully absolved from every marital right and duty and consesequence as they were before marriage, and were fully restored to the freedom they enjoyed before marriage in every respect, except they could not- marry for six months. Indeed, had the legislature withheld that privilege forever, still no element of the relation of husband and wife would have continued to exist. That this construction of the law of 1881, is correct is shown by the language of Chief Justice Horton in deciding the case of Baughman v. Baughman, 32 Kan. 538, 543, 4 Pac. 1003, where it was said:
“Under the statute, a divorce granted at the instance of one party operates 'as a dissolution of the marriage contract as to both, and leaves them at liberty to contract other marriages the same as though the first had never subsisted. (Laws of 1881, ch. 126, § 1; 1 Bishop on Marriage and Divorce, § 306.; Barber v. Barber ; 16 Cal. 378.) The decree of divorce in this state is only encumbered with the statutory restriction, that during the six months after the rendition of the decree, and the pendency of the proceedings to reverse the same, it is unlawful for either of the parties to marry.”
The law of 1889 returned to the same subject treated by the law of 1881, and aside from protecting against fraud resorted to by the successful party and improving details of procedure, dealt with the same .evils, namely, those attending a marriage immediately following a judgment of divorce. Hence, the prohibition upon marriage in case of an appeal was extended for ñ period of thirty days beyond final judgment in the appellate court, a marriage within six months of the .decree was declared tobe void as well as criminal, and a specific penalty for such marriage was prescribed. These rigorous provisions plainly indicate the mischief sought to be remedied, and the more so because no reference whatever is made to the property rights of the parties or to the disposition of children. ■No intimation is to be found anywhére in the statute that complications upon those subjects had arisen demanding any change of the law as to them. The only reason for holding in abeyance 'the operation of the judgment upon such matters would be to permit a • subsequent modification of it as changed conditions might require, and no such purpose is indicated.
Since, however, one ignorant of the law might be misled by unqualified recitals in a divorce decree and be induced by them to yield to a relation believed to be marriage, but in fact utterly void, it was deemed proper that the decree itself should state the day and date of its rendition and express the restriction which the law imposes upon the privilege of the parties for the ensuing six months. A formula for doing this is prescribed by section 8, which relates to the duties of the clerk in making up the record.
Only one such restriction, however, is created. That is found in section 6, and obliges tire parties to refrain from marriage. As to that matter the decree does not become absolute or take effect until six months shall elapse, but since the parties are repressed in respect to no other prerogative, every other result of a complete dissolution of the marriage follows at once.
That section 8 relates merely to the language in which the decree is to be couched instead of being an affirmative declaration that the decree shall have no effect during the six months immediately following its renditioñ is apparent from another consideration. If, by virtue of section 8, the decree did not dissolve the marriage, and the parties continued to be husband and wife for six months, a marriage by either of them with another person within that period would be unlawful and punishable as bigamy without any of the provisions of sections 6 and 7. The-law of bigamy which they create would smack very much of “a fond thing vainly invented,” unless it should be construed to apply to divorced persons and not to those who are married.
These views are supported by the judgment of the supreme court of Oklahoma in the case of In re Smith, Petitioner, 2 Okla. 153, 37 Pac. 1099.
Prom this it must follow that S. H. Durland was not an heir of Debbie Durland after her decease, and that he is not, for any reason, entitled to the fund he claims.
The judgment of the district court is affirmed. •
All the Justices concurring. | [
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Per Curiam:
The defendant in error recovered a tract •of land in an action of ejectment upon a title derived through an administrator’s sale and deed. The defense was that the probate court had directed the sale to be public, and that it was in fact made privately. Prior to the commencement of the ejectment suit it was discovered that the record in the probate court disclosed a direction to the administrator to sell at public sale. Upon due notice to the plaintiff in error a hearing was had in the probate court, in which he participated, resulting in a finding that the original order in fact was that the administrator sell at public or private sale, and the record was, corrected to show the truth. Upon the trial of the ejectment suit, the district court found as a fact that the original order of the probate court was that the land should be sold at public or private sale. Under these circumstances the administrator’s sale was valid, and the deed conveyed a good title.
Plaintiff in error, in his brief and in the oral argument, discusses the following questions:
“A sale of real estate at private sale by an administrator, under an order of the court directing a public sale, is void.
“An order of the court attempting to change such an ordér of sale by making it read ‘at public or private sale,’ made at a succeeding term and after said sale, changes the original order in a substantive and material part, and therefore exceeds the authority of the court to amend its records, and such action of the court is void and of no effect.”
Under the foregoing facts, however, it will be observed that neither of these questions is involved in the record. The probate court did not attempt to change an order of sale to make it read “at public or private sale,” and did not change the original order in a substantive and material part. It did not change or attempt to change the order at all, and the private sale by the administrator was not made under an order of court directing a public sale.
The judgment of the district court is therefore affirn • | [
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The opinion of the court was delivered by
Pollock, J.:
In this case we are confronted with a motion to dismiss for want of jurisdiction. The record shows .judgment rendered November 1, 1901. Time to make and serve a case for this court was extended as follows:
“And thereupon, and on the application of the plaintiffs, and for good cause shown, plaintiffs are allowed till and including the 1st day of February, 1902, to make and serve a case-made for appeal to the supreme court, and the defendant is allowed till and including February 28, 1902, to suggest amendments thereto ; case to be settled and signed thereafter on five days’ written notice by either party.”
The regular term of office of the trial judge who tried the case expired on the second Monday of January, 1902. On September 2, 1901, the trial judge, the Honorable R. M. Pickier, was appointed to succeed himself as district judge, such appointment to take effect upon the expiration of his regular term of office. The case was settled by the trial judge March 6, 1902, over the objection and protest of counsel for defendant.
Had Judge Pickier not been his own successor, it is conclusively settled by the former decisions of this court that, as no definite time was fixed at which the case should be settled when the term of office of the trial judge expired, his successor was without jurisdiction to settle or allow the case. (St. L. & S. F. Rly. Co. v. Corser, 31 Kan. 705, 3 Pac. 569 ; K. & C. P. Rly. Co. v. Wright, 53 id. 272, 36 Pac. 331; Manufacturing Co. v. Stoddard, 61 id. 640, 60 Pac. 320; Railway Co. v. Preston, 63 id. 819, 66 Pac. 1050.) Does the fact that Judge Pickier was his own successor change the rule ?' We think not. The statute provides :
“In all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired,.or may hereafter expire, before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.” (Gen. Stat. 1901, §5035.)
The right to prosecute proceedings in error in this court is of statutory creation. Following the previous decisions of this court in construing the above statute, it must be held that where a trial judge is granted the power to settle a case for this court after his term of office has expired, the statute requires the time for the exercise of the power to. be fixed at the date of the expiration of his term of office. No exceptions are made in the statute. It would have been entirely reasonable for the legislature to make the exception here contended for by counsel for plaintiffs in error. It did not do so. As the order of the trial judge did not fix the time for the settlement of the case, but left the date of settlement uncertain, contingent upon the giving of the written notice of the time and place of settlement by counsel, and as the time for the settlement of the case remained undetermined and unfixed at the date of the expiration of the term of office of the trial judge, we are constrained to hold that the • petition in error must be dismissed for1 want of jurisdiction in this court. It is so ordered.
However, we desire to add that the record in this case has been carefully examined. The case is one of equitable cognizance, in which the advice of the' jury was taken upon the questions of fact arising on the trial. All of the findings made by the jury were adopted by the trial court as its findings from the evidence in the case. In this condition of the record, the judgment entered thereon would not be disturbed by this court had the question of jurisdiction presented been otherwise determined.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The appellants were charged in a complaint before a justice of the peace with disturbing the . peace. Upon being arrested and brought before the justice they pleaded guilty, and were sentenced to the county jail for a period of sixty days, and adjudged to pay the costs. The defendants appealed to the district court. The state filed a motion in that court to dismiss such proceeding for the reason that an appeal would not lie from a judgment of a justice of the peace upon a plea of guilty where such judgment was clearly authorized by law. This motion was sustained, and the cause remanded to the justice’s court whence the appeal had been prosecuted.
The only question for our consideration is, May a defendant against whom a judgment has been rendered by a justice of the peace upon a plea of guilty of the commission of a misdemeanor appeal from such judgment, where the judgment is clearly within the authority of such court? The statute important to a full understanding of the question is section 5826, General Statutes of 1901:
“The defendant shall have the right of appeal from any judgment of a justice of the peace imposing fine or imprisonment, or both, under this act, to the court having criminal jurisdiction of the county, which appeal shall be taken immediately upon the rendition of such judgment, and shall stay all further proceedings upon such judgment.”
This statute appears to give the right of appeal, regardless of the manner the justice became informed of the guilt of the defendant — whether by verdict of a jury or plea of guilty. The right of appeal is not limited or restricted to cases wherein the fact of defendant’s guilt is found from the evidence introduced on a formal trial. It is the judgment pronounced upon the fact from which he may appeal, and not the finding of the fact. Whether it is policy to grant an appeal when the party charged with an offense waives a trial and pleads guilty must be referred to another department of government. The statute authorizes it.
The judgment of the court below is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was a proceeding in habeas corpus to, obtain the custody of a twelve-year-old boy. The trial court gave judgment that the petitioner, mother should have custody. The father has appealed.
The petition alleged that Edgar was the son of plaintiff and defendant and defendant took him from his home in California to Kansas, concealed his whereabouts from the petitioner, and petitioner feared defendant would take him out of Kansas or conceal him; that defendant was not a fit and proper person to have the custody of the child. The petition prayed for a writ of habeas corpus commanding defendant to bring Edgar before the court and to receive what should be determined by the court concerning the child and that petitioner have his custody.
A writ was issued. In obedience to it defendant delivered Edgar. He was placed in the Shawnee County Parental Home to await the outcome of the litigation. Subsequently upon the defendant giving-bond to produce him in court he was again placed in his father’s custody.
The defendant filed an answer in which he alleged the marriage of himself and petitioner; that they had three children aged seventeen, thirteen and Edgar aged eleven; that petitioner and defendant with all three children had lived together in California until September 1, 1949; that petitioner had acted in an improper manner and about September 1, 1949, had left the family home and taken all three children with her; that defendant had attempted to visit the family and was made to feel unwelcome; that Edgar asked this defendant on numerous occasions to provide a home for him and in May, 1950, defendant took him and left California for tire purpose of providing him a home; that they resided in New Mexico for a time and came to live in Topeka about August 1, 1950. The answer further alleged that since that time defendant and Edgar had lived in Topeka in a furnished apartment; that their home was neat, clean and comfortable and they had been living a normal, happy life; that Edgar was enrolled in Sunday School and did not miss a day of school until he was forced to stay in the Shawnee County Parental Home on account of the writ in this action; that he had made good grades in school and attended Sunday School every Sunday; that he had stated to defendant repeatedly that he wished to live with this defendant and did not wish to return to California with his mother; that defendant had steady employment in Topeka and was making $8 a day, together with a pension of $72 a month, as a partially disabled World War I Veteran; that he was able and willing to provide a good home for Edgar.
The answer then alleged “That by reason of the above, this defendant specifically states and alleges that the best interests and welfare of Edgar require that the custody of him be left with this defendant and that he be not returned to California to live with his mother.”
The final allegation of the petition was that when defendant left California no court order had been made as to the custody of Edgar to the knowledge of defendant.
The prayer of the answer was that the writ be denied and that he be given Edgar s custody.
The court found:
“(1) that the plaintiff is a fit and proper person to have the care, control and custody of Edgar Earl Moyer, minor child of the parties hereto; (2) that it is to the best interests and welfare of said child that his care, control and custody be placed in the plaintiff herein; (3) that said Edgar Earl Moyer should be discharged from the custody of the defendant herein and should be delivered forthwith by the defendant to the plaintiff, and (4) the court finds tire issues herein generally, in favor of the plaintiff and against the defendant.”
A motion for a new trial was overruled and final judgment entered awarding custody of Edgar to petitioner, his mother — hence this appeal.
The defendant gave a supersedeas bond in the amount of $500, so the child was placed in his custody pending the final outcome of this appeal.
The errors assigned by defendant are that the trial court erred in rendering judgment for the plaintiff, and in permitting the introduction of evidence over the objection of defendant.
Defendant argues here that the judgment was wrong because since both the father and mother were of equal fitness, the trial court should have recognized the father’s common-law right of custody. No opinion of ours where we have recognized such priority of right in the father is cited by defendant and we have found none. We have held many times that as between the parents themselves both have an equal right to custody.
From an early date this court has considered cases where the dispute was between parents over the right to custody of minor children. In re Bort, Petitioner &c., 25 Kan. 308, was a case where a divorce and custody of the two minor children had been granted the father in Wisconsin and while the divorce action was pending the mother had brought the two children of the couple to Kansas and at the time of the hearing was living with them at the home of her father and mother in Kansas. The father brought habeas corpus relying on the assumption that the parents had some property right in children. We proceeded to point out that this court did not follow that doctrine. The court then proceeded to lay down a rule that has been a guide to us ever since. The court said:
“We understand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. . . .”
The court then proceeded to examine the record and decided the Kansas mother should retain custody, notwithstanding the Wisconsin divorce decree, and child custody judgment granted the father for the fault of the mother. The court said:
“But the question for our decision is, what do the best interests of the children require?”
In Wear v. Wear, 130 Kan. 205, 285 Pac. 606, the mother had obtained a divorce and custody of a child in an action brought in Oklahoma. She had sent the child to Kansas to visit relatives while the divorce action was pending and the child was here when final judgment in Oklahoma was entered awarding her the child’s custody. The father had the child in his custody in Kansas and refused to surrender him in compliance with the Oklahoma judgment. The mother sought in this state to secure custody of the child. The trial court gave her judgment. We cited and reviewed many authorities and held the mother was entitled to the custody. We said:
“In a habeas corpus proceeding between parents for the custody of the child the rights of the parents are to be considered, but the interest of the state, in its position as parens patriae to all minors within its jurisdiction, is ever present. As between the parents themselves, they may be bound by a former adjudication (See Avery v. Avery, 33 Kan. 1, 6, 5 Pac. 418; In re Hamilton, 66 Kan. 754, 71 Pac. 817), but the state, on its relation of parens patriae, looks to the welfare of the child at the time the inquiry is being made, and for that purpose former adjudications between parents is evidentiary only and not controlling. This is illustrated by the case In re Bort, 25 Kan. 308, a habeas corpus proceeding brought by the father for the custody of the children.”
The following statement is of value here. We said:
“The trial court correctly held that the' contest as presented to the court was one between the father and the mother, and that as between them the matters adjudicated by the Oklahoma court in the divorce case were res judicata as to matters deterihined by the decree in that case, and as of the time it was rendered. The trial court specifically offered to hear evidence as to changed conditions which would authorize or justify a different order with respect to the custody of the child, but, as shown by the entry in the journal, counsel for respondents stated in open court they had no evidence of that character to offer.”
It is argued that Wear v. Wear, supra, and the cases discussed there, all turned actually on the question whether this court would enforce a child custody order from a court in another state as a matter of absolute right on the suit of either parent. It is argued there was no divorce decree in this action and that the father had as much right to have this child with him as the mother had to have him with her in California — hence there was no restraint. There was a court order in this case, not a divorce decree to be sure, but nevertheless a court order with reference to the custody of this child.
The matter arose under a rather unique California statute. We shall treat it at this point.
Deerings Code of Civil Procedure and Probate Code of California provides among other things a children’s court of conciliation. The jurisdiction of the court of conciliation is conferred on the superior court. These correspond to our district courts. These courts have authority, amongst other , things., to appoint a director of conciliation. This official has wide jurisdiction to receive applications and complaints, investigate facts, exercise powers of other court commissioners, hold conciliation conferences with parties and make recommendations to the judge of the conciliation court, provide supervision, cause orders of the conciliation court to be entered, and to cause reports to be made. Section 1760 provides as follows:
“Whenever any controversy exists between spouses which may, unless a reconciliation is achieved, result in the dissolution or annulment of the marriage or in the disruption of the household, and there is any minor child of the spouses or of either of them whose welfare might be affected thereby, the children’s court of conciliation shall have jurisdiction over the controversy, and over the parties thereto and all persons having any relation to the controversy, as further provided in this chapter.”
It is conceded that plaintiff and defendant were husband and wife and had been living together in California. A disagreement arose and they separated, the plaintiff taking three children with her. The other two, a boy and a girl, both older than the child in this action, who was about eleven at that time, were the children. The defendant father filed a petition for conciliation in the conciliation court. He alleged the above facts a little more in detail; that a reconciliation might be had, set out the facts about the children and prayed that the court take jurisdiction.. In his affidavit to sub-port this petition he set out the cause of separation; that is, that his wife had been seeing other men; that he wanted a divorce; that his wife was likely to interfere with a settlement by removing some of the children from the custody of the court; that the child would be better off under different environment. An order was issued restraining the wife from removing the child from Los Angeles county and she was cited to appear. A hearing was had before the director of conciliation. The director made an order stating that defendant’s idea in coming into court was to have the court persuade the wife to place the eleven-year-old boy in the McKinley Home. The director stated that the mother was receiving state aid, was not working and was giving the child good care. He further stated “It was suggested that the child remain in the home with his loved ones.” The final recommendation was that the case go off the docket. This was approved by the judge of the superior court. All these proceedings were introduced at the trial of this action in lower court. We hold the effect of the final order in these proceedings amounted to a finding by the trial court in California that the welfare of this child would best be served by leaving him with his mother. The trial court had jurisdiction of this petition for a writ of habeas corpus.
This action was tried in the lower court on the theory that the questions were the fitness of each parent and the welfare of the child. Inherent in these questions were the circumstances leading up to the separation, the home and care being furnished by defendant and the home and care the plaintiff would be able to furnish. There was testimony of both the plaintiff and defendant as to the alleged misconduct of plaintiff with a man other than her husband and the general situation of both parents as to fitness. Roth the parties were before the judge of the trial court. That court found neither party was unfit, but placed the decision on the welfare of the child. In cases involving as intangible a situation as the welfare of a twelve-year-old boy the trial court must of necessity be vested with wide discretion. We are unable to say the trial court abused it here.
Defendant argues the trial court erred in the admission in evidence of the records of the proceedings in the superior court in California reference to which has already been made in this opinion. He argues these proceedings had no bearing on the question of the fitness of either parent or the present welfare of the child. This evidence shed some light on the general situation of the parties and of the fitness of the mother to have custody and were admissible for that purpose.
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The opinion of the court was delivered by
Price, J.:
The original opinion in this case is reported at 171 Kan. 159, 231 P. 2d 220. The facts will not be repeated here. A rehearing was granted to appellee, and it is argued that the application of G. S. 1941 Supp. 79-2804b to prevent the recovery of title to land as against one claiming under a void deed constitutes a taking of property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States, and that the legislature cannot change ownership into a mere right of action and then declare a forfeiture of the title if the owner fails to bring an action within the six months’ period provided for in the statute.
We have examined these arguments and the authorities cited in support thereof, but in our opinion they are either inapplicable to the question before us or without substantial merit.
Further consideration of this question convinces us of the soundness of the rule laid down in our original opinion, namely, that in proceedings governed by the tax foreclosure act (G. S. 1941 Supp. 79-2801 to 2809) every action, either legal or equitable, to open, vacate, modify or set aside any judgment rendered for taxes, or any order of sale or sale made thereunder, including those actions brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of confirmation of sale (G. S. 1941 Supp. 79-2804b). We think it was within the power of the legislature to enact such a statute fixing a definite time within which such an action may be brought. While factually dissimilar, see O’Keefe v. Behrens, 73 Kan. 469, 85 Pac. 555, 8 L. R. A. (N. S.) 354; James v. Logan, 82 Kan. 285, 108 Pac. 81, 136 A. S. 105; Erskine v. Dykes, 158 Kan. 788, 150 P. 2d 322; Schlemeyer v. Mellencamp, 159 Kan. 544, 156 P. 2d 879; and Bradley v. Hall, 165 Kan. 358, 194 P. 2d 943, as bearing on the general subject matter.
We adhere to our original opinion.
Smith, J., dissenting. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages sustained by plaintiff when its truck collided with a semitrailer truck owned by the defendants. Plaintiff prevailed and defendants appeal.
Briefly stated and as disclosed by the pleadings as finally framed, the plaintiff alleged that on April 7, 1949, at 10:30 P. M. defendants who were driving a semitrailer truck south on U. S. Highway No. 75 north of Holton, Kansas, negligently stopped their truck on the highway and negligently failed to place flares or warning signals to the rear of the truck to indicate its position on the highway, and that the stop lights and clearance lights on their -truck were not properly lighted and were covered with a tarpaulin or canvas, and that the driver of plaintiff’s truck, by reason of such negligence, was unable to see defendants’ truck and as a result plaintiff’s truck struck defendants’ truck, causing the damages for which recovery was sought. Defendants’ answer denied their negligence and alleged negligence of plaintiff’s driver in failing to maintain a lookout, in driving at a high and unreasonable rate of speed, in failing to keep his truck under control, in driving without adequate lights and brakes and in failing to turn aside when there was ample time to do so and room for plaintiff’s truck to pass without a collision.
A jury was waived and trial was by the court which was requested to make findings of fact and conclusions of law. The trial court rendered judgment in favor of the plaintiff and made findings of fact as follows:
“1. Defendant’s semi-trailer truck was parked on highway No. 75 approximately two and one-half miles north of the City of Holton, Kansas, at the time of the accident.
“2. At the point of collision, said highway was a blacktop surface type, the main traveled portion of which was 26 feet in width, level profile with vision of mile in either direction.
“3. The point of impact on the involved vehicles was the left rear comer of defendant’s trailer and the right front comer of the plaintiff’s pickup.
“4. The width of the defendant’s trailer was 8 feet.
“5. The left or east side of defendant’s trailer was 15 feet from the east edge of the main traveled portion of the highway.
“6. The right or west side of defendant’s trailer was 3 feet from the west edge of the main traveled portion of the highway.
“7. Immediately prior to the collision, defendant gradually slowed his truck to a stop over a distance of 200 feet. That such stopping was voluntary as distinguished from an emergency or compelled stop.
“8. Under the existing situation and conditions it would have been practical for defendant to have driven his truck 3 feet farther to the right or west side of the main traveled portion of said highway before coming to a full stop- and he was guilty of negligence in not so doing.
“9. The negligence of tire defendant as set out in No. 8 was the proximate-cause of the collision.”
• Thereafter the defendants filed motions for modification of the-findings and for additional findings and for a new trial, and upon a hearing thereof the. trial court made the following additional findings: /
“1. The driver of plaintiff’s truck was driving at a speed of approximately fifty miles per hour immediately before the collision.
“2. Plaintiff’s truck was a comparatively new 1949 Ford pickup truck,, equipped with good lights and good brakes.
“3. The road surface was dry and the weather clear at the time and place-of the accident.
“4. There was no north bound or oncoming traffic at or about the time- and place of die accident.
“5. Plaintiff’s truck was approximately one hundred yards to the rear, or nordi of defendant’s truck, when defendant’s truck came to a stop.
“6. Defendant’s truck was brought to a stop by its driver because he smelled gasoline.
“Upon request by defendants for amplification of Additional Finding No. 6,. the Court stated that the evidence established that gasoline had spilled from the carburetor of defendant’s truck onto its engine, due to a dislodged carburetor screw. This spillage of gasoline onto the truck engine caused the defendant driver to smell gasoline as found in Additional Finding No. 6.”
The defendants then moved for judgment on the findings of the court notwithstanding the judgment, and this motion and the motion for a new trial were taken under consideration by the trial court, which, according to the journal entry ruled “the Court still concluding that the proximate cause of the collision was the parking of defendants’ truck where it was stopped (Nos. 8 and 9 of the original Findings and Conclusions); and concluding that the negligence of plaintiff, if any, was only a remote cause of the collision, does hereby overrule defendants’ Motion for Judgment on the Finding and Motion for New Trial.”
In due time the defendants perfected their appeal to this court, their specification of errors covering the matters hereafter discussed.
In a preliminary way it may be noted that plaintiff at no time raised any question as to the sufficiency of the evidence to support the findings of the trial court, nor did it contend that other or additional findings should have been made. It may also be said that where the trial court is requested to and does make findings of fact in accordance with G. S. 1949, 60-2921, it is presumed its findings embrace all of the facts in controversy established by the proof (see e. g. Snodgrass v. Carlson, 117 Kan. 353, 232 Pac. 241); that all of the findings must be read as a whole to determine their sufficiency to support the judgment (see e. g. Kuhn v. Johnson, 91 Kan. 188, 137 Pac. 990); and that a general finding of negligence must yield to a detailed contrary finding on the specific act of negligence charged (see e. g. Brittain v. Wichita Forwarding Co., 168 Kan. 145, 211 P. 2d 77).
Two general questions are presented. Do the findings of fact convict the defendants of any actionable negligence, and if so, was the plaintiff’s driver guilty of any negligence which contributed to the collision? In their briefs, both appellants and appellee argue that the evidence discloses facts not included in the findings of the trial court. By their motion for judgment the appellants concede the findings made are supported by the evidence (Booker v. Kansas Power & Light Co., 167 Kan. 327, 205 P. 2d 984, and cases cited). The appellee filed no motion for additional findings. Under decisions above noted, our consideration of the appeal is limited to the facts as found by the trial court.
It is clear from the answers to questions Nos. 8 and 9 and the ruling denying defendants’ motion for judgment on the findings that the only ground of negligence found by the trial court was that defendants had not parked their truck three feet farther to the right or west side of the road. What situation is disclosed by other findings? By its first finding No. 7 the trial court found that defendants gradually slowed their truck over a distance of two hundred feet and that their stopping was voluntary as distinguished from an emergency or compelled stop, but by its second finding No. 6, and the amplification thereof, it found to the contrary. Under G. S. 1949, 8-570, no person shall stop a motor vehicle upon the main traveled part of the highway when it is practical to stop off such part of the highway, but in every event a clear and unob structed width of at least twenty feet of such highway (an impossibility here in view of the first findings, Nos. 2, 4 and 5) shall be left for traffic and a clear view of such stopped vehicle shall be available for a distance of two hundred feet in each direction (a situation which did obtain according to first finding No. 2 and the fact the trial court did not find the truck to be without lights as charged). However, the statute further provides that the section mentioned shall not apply to the driver of any vehicle which is disabled while on the main traveled highway to such an extent it is impossible to avoid stopping.
When considered as a whole, the trial court found that the defendants stopped their truck, not voluntarily as found by its first finding No. 7, but as the result of gasoline spilling on the engine as found by second finding No. 6 and the amplification thereof. The last mentioned findings are not general — they are specific. The danger of fire from spillage of gasoline on a running engine is so well understood that it is fruitless to argue that stopping the truck to remedy the defect was not a compelled stop. The stopping under the circumstances created an exception under the statute and under the facts found was not an act of actionable negligence.
Were there any doubt as to the correctness of the above conclusion, appellee would be precluded from recovery on another ground. Under the findings, on the night in question the highway was dry, the night was clear, there was no oncoming traffic. By reason of the trial court’s refusal to find to the contrary, it must be assumed that appellants’ truck was equipped with adequate rear lights. The trial court did find that appellee’s truck was comparatively new and equipped with good fights and good brakes and that it was 100 yards to the rear when appellant’s truck stopped. Notwithstanding the situation presented, appellee’s driver drove his truck at a speed of fifty miles per hour into the rear of appellants’ truck.
It is not necessary that we make an extended review of our decisions holding that it is negligence as a matter of law to drive a motor vehicle in the nighttime at such a speed that it cannot be stopped within the radius of its headlights or within a distance that objects, obstructions and danger signals can be seen ahead of it (see e. g. Tuer v. Wayland, 129 Kan. 458, 460, 283 Pac. 661, and Eldredge v. Sargent, 150 Kan. 824, 830, 96 P. 2d 870). And see also Brittain v. Wichita Forwarding Co., 168 Kan. 145, 211 P. 2d 77, where a somewhat similar question was discussed and decided. Such exceptions as have been made to the rule have no application here and need no mention. A driver on a public highway has a duty to look ahead and see vehicles and objects in his line of vision and in case of accident he is conclusively presumed to have seen what he could and should have seen in the proper performance of his duty. (Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239.) Under the findings nothing prevented appellee’s driver from seeing appellants’ truck and either stopping his own truck or so operating it that he could have passed on the left side as there was ample room to do, as disclosed by the findings.
The judgment of the trial court is reversed and the cause is remanded to the trial court with instructions to render judgment for the appellant defendants. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an original proceeding whereby petitioner seeks his release from the state penitentiary by petition for a writ of habeas corpus. He was convicted on two felony counts, the first being for felonious assault, under G. S. 1949, 21-431, and on the second count for second degree robbery of the person assaulted, in violation of G. S. 1949, 21-528. Having previously been convicted of two felony charges, petitioner was sentenced to life imprisonment in the state penitentiary pursuant to provisions of our habitual criminal law, G. S. 1949, 21-107a.
Briefly stated, the grounds for release alleged in the petition are:
1. He did not receive a preliminary examination. 2. The journal entry of his preliminary examination was false. 3. False and perjured testimony was used in preparing the journal entry. 4. The warrant of arrest was erroneous. 5. He did not waive his preliminary examination. 6. He was held incommunicado, 168 hours after his arrest, and before arraignment. 7. The authorities conspired to defeat justice. 8. The journal entry in case 10,241 does not comply with G. S. 1949, 62-1516, and 9. G. S. 1949, 21-107a (the habitual criminal statute) is unconstitutional.
Respondent’s answer contained a general denial of all averments of the petition not specifically admitted and set forth the amended information, the original journal entry of conviction, a subsequent journal entry corrected pursuant to a nunc pro tunc order and the commitment.
Petitioner previously filed five petitions for writs between February 3, 1948, and June 12, 1950. The first three of these were original proceedings in this court and the other two were filed in other courts. Those filed and denied in this court contained, among other grounds, the complaints now made pertaining to the warrant under which he was arrested, lack of a preliminary hearing and that he was held incommunicado prior to arraignment. These petitions were denied by this court without formal opinion. The instant petition contains nothing new on those grounds.
The journal entry touching his preliminary hearing on the two offenses for which he was last tried and convicted discloses petitioner waived his preliminary hearing. The journal entry of judgment in the district court discloses he was represented by two attorneys during the trial and on the motion for a new trial. At the trial petitioner made no complaint he had not received a preliminary hearing or that it was irregular in any respect. On the contrary he joined issues in the district court on the charges contained in the information by entering a plea of not guilty and thereafter proceeded with the trial without objections of any character concerning any previous court proceedings or conduct of officers in whose custody he had been held. He filed no plea in abatement. He sought no continuance on the ground he or his attorneys were prevented from investigating the facts, subpoenaing necessary witnesses or that he was unprepared for trial by reason of any of the first six grounds now alleged in his petition. Under these circumstances he waived such complaints. (State v. Perry, 102 Kan. 896, 171 Pac. 1150; State v. Wallgren, 144 Kan. 10, 11, 58 P. 2d 74.)
Had petitioner properly raised these complaints in the district court he could have presented them on appeal in the event of adverse rulings. He failed to present them to the district court and did not appeal.' Habeas corpus, of course, is not a substitute for redress of alleged trial errors which may be corrected on appeal, (Townsend v. Hudspeth, 167 Kan. 366, 205 P. 2d 483.) It is, of course, elementary that a petitioner is required to establish alleged grounds for a writ by a preponderance of the evidence. (Rice v. Hudspeth, 166 Kan. 662, 203 P. 2d 169.) This burden of proof the petitioner has completely failed to meet with respect to complaint No. 7.
The instant record fails to disclose any merit relative to complaint No. 8. Respondent concedes the original journal entry of judgment did not conform in all respects to the provisions of G. S. 1949, 62-1516. He states, however, it was corrected by means of a nunc pro tunc order to speak the truth and to comply with the statute. That corrections in a journal entry may be made for that purpose and in that manner has been indicated clearly by this court on various occasions. A few of the cases are Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165; Jamison v. Hudspeth, 168 Kan. 565, 213 P. 2d 972. The petitioner fails to disclose in what manner, if any, the judgment under which he is now serving his sentence is invalid or irregular.
Petitioner’s ninth ground cannot be sustained. The statute repeatedly has been held to be constitutional in State v. Woodman, 127 Kan. 166, 272 Pac. 132; Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372; Hutton v. Amrine, 153 Kan. 436, 111 P. 2d 540, and in numerous later decisions. The petitioner argues that although the statute may not be unconstitutional in itself it is unconstitutional by reason of the manner of its application. He argues no issues were joined in the trial of the case concerning the commission of other previous offenses. Manifestly, no such issues were joined by the allegations of the information and the plea of not guilty. The commission of previous offenses was no concern of the jury. It was not concerned with the sentence to be pronounced but only with his innocence or guilt of the charges for which he was then on trial. The matter of imposing a proper sentence rested solely in the province of the court. It was to the advantage and for the benefit of the petitioner that the jury was not informed of his previous convictions. The contention of the petitioner and the reasons for denying it were early set forth in State v. Woodman, supra, and need not be repeated here. See, also, Levell v. Simpson, supra.
The journal entry of judgment discloses that after the verdict of the jury had been rendered and before sentence was pronounced petitioner’s attention was called to the evidence of the state touching his former convictions. In fact when petitioner thereafter was asked whether he had any legal cause to show why sentence should not be pronounced against him neither he nor his counsel asserted any reasons against a consideration of the previous felony conviction or to the imposition of sentence in harmony with the provisions of the habitual criminal law.
The writ must be denied. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for injuries sustained by plaintiff when an automobile in which she was riding as a guest struck a culvert and upset. The defendant’s demurrer to plaintiff’s amended petition was overruled and he appeals.
As the result of the sustaining, in part, of a motion to make definite and certain, the plaintiff filed an amended petition in which she alleged that on April 22, 1950, the defendant invited her and a friend to ride from a tavern near Topeka to her home in Topeka, and further,
“3. That plaintiff entered defendant’s automobile and was riding in the rear seat and defendant started driving out of the driveway, increasing his' speed as fast as the car would go, and entered California Avenue, a blacktop highway, and turned north and kept increasing the speed of the automobile and said speed of the car was in excess of 65 miles per hour.
“4. That defendant ignored plaintiff’s request to slow defendant’s car speed and that defendant immediately took his right hand off the steering wheel of the car and placed his hand on defendant’s girl companion, who was riding in the front seat with defendant, and while said defendant’s car was traveling at its highest speed of about 70 miles per hour, defendant steered or permitted said car to be driven off the road into a culvert upsetting said car and injuring this plaintiff, and this plaintiff does not know where defendant’s left hand was.
“5. That defendant was guilty of gross and wanton negligence and said negligence was the proximate cause of plaintiff’s injuries, and the negligent acts of defendant are more particularly set out as' follows:
“(a) Defendant was intoxicated and under the influence of liquor and plaintiff had no knowledge of his being intoxicated or being unable to properly drive his car.
“(b) Defendant failed and refused to heed or obey a request to slow his vehicle’s speed.
“(c) Defendant took his right hand off the steering wheel and placed it on his girl companion and failed to guide defendant’s automobile.
“(d) Defendant did not control his car and allowed s'aid vehicle, being driven at a fast rate of speed of about 70 miles per hour, to go off the highway and crash into a culvert, injuring plaintiff.”
The remainder of the allegations pertains to plaintiff’s injuries and damages and needs no attention here.
Defendant filed a motion that the amended petition be made more definite and certain in four particulars. In his abstract the defendant appellant states that the plaintiff amended her petition by interlineation, but there is no showing as to any ruling made on the motion. Thereafter defendant filed his demurrer on the ground the petition did not state facts sufficient to constitute a cause of action and the ruling thereon being adverse to him, he perfected his appeal to this court.
Appellant first directs attention to his motion to make definite and certain directed at the amended petition and urges that the appellee having successfully resisted that motion, the allegations of the amended petition are subject to strict construction. It is implicit in the rule stated that the motion was proper and should have been, but was not, sustained. Where the motion was properly resisted and denied the rule of strict construction does not apply. See Walton v. Noel Co., 167 Kan. 274, 276, 205 P. 2d 928, and cases cited. Without detailed discussion, it may be said the information sought to be elicited by the motion was in part evidentiary in character rather than as to ultimate facts. The only instance otherwise was an attempt to have the appellee state the time she met the appellant at the tavern. Quite obviously the purpose was to obtain a statement from which it could be argued that the appellee had been with the appellant long enough to know he was intoxicated, as alleged, and knowing that, she was guilty of negligence in riding with him. Of course, had she pleaded such facts, the appellant could have taken advantage by demurrer, but there is no rule requiring a plaintiff to plead matter which ordinarily constitutes a defense to the claim asserted and which must be pleaded by a defendant if it is to be relied on.
Appellant’s argument is premised on the proposition that his demurrer should have been sustained in that the use of the adjectives “gross and wanton” added nothing to the acts pleaded, citing Bailey v. Resner, 168 Kan. 439, 214 P. 2d 323, and that the facts alleged rather than any conclusions stated, must show that the defendant driver was guilty of gross and wanton negligence, citing Anderson v. Anderson, 142 Kan. 463, 50 P. 2d 995, and Leabo v. Willett, 162 Kan. 236, 175 P. 2d 109. Those rules are correct. The greatest portion of appellant’s argument is devoted to a discussion of the allegation of his intoxication and of his effort to have the appellee make her petition more definite and certain to show that she had been with him a sufficient length of time that she must have known of his condition, a phase previously treated, and he then contends that this court in considering gross and wanton negligence under the guest statute (G. S. 1949, 8-122b) has held that intoxication is not evidence of gross and wanton negligence, citing Srajer v. Schwartzman, 164 Kan. 241, 188 P. 2d 971; that the fact he ignored appellee’s request to slow down, did not constitute such negligence, citing Ewing v. Edwards, 140 Kan. 325, 36 P. 2d 1021; Donelan v. Wright, 148 Kan. 287, 81 P. 2d 50; and Russell v. Turner, 148 Fed. 2d 562; that the fact he took his hand off the steering wheel and placed it on his companion was not sufficient, citing Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573; and that an allegation of high speed over a rough, rutted road did not charge the driver with gross and wanton negligence, citing Murrel v. Janders, 141 Kan. 906, 44 P. 2d 218, and Leabo v. Willett, supra. Without particular comment, appellant also directs attention to Bailey v. Resner, supra, where two actions under the guest statute, against the parents of a son who was epileptic and the son, to recover damages sustained when the son had an epileptic seizure and lost control of the motor car in which all of the parties were riding. In that case, this court asked and answered the question as to what constituted wantonness under the guest statute and cited most of our decisions arising under that statute. The effect of appellant’s argument is that as to each factual element charged in the amended petition, this court had held it did not constitute wantonness under the guest statute and that facts are not stated which would warrant the court in holding appellant drove his car with a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequence of his act or acts.
Appellee’s brief is brief. After reviewing the allegations of her amended petition, she says they are sufficient, in support of which she copies definitions of “reckless” “recklessness” and “wantonness” from some of our decisions, the most of which are cited in Bailey v. Resner, supra, as well as from the Restatement “Torts,” § 500. In addition, she makes some reference to the pleading of ultimate facts and that she need not plead evidentiary matters.
A mere reading of the amended petition discloses a situation covered by our automobile guest statute, G. S. 1949, 8-122b, which, so far as pertinent here, provides that no person who is transported by the operator of a motor vehicle as his guest shall have a cause of action for damages against the operator for injury unless the injury shall have resulted from the “gross and wanton negligence” of the operator of the vehicle. Since its enactment many cases have arisen where the quoted words have been treated or defined. Definition of the words “wanton” and “wantonness” may also be found. In Bailey v. Resner may be found an extended list and in the cases there listed may be found others where the phrase and its component words are defined. In the last cited case it was said:
“The term ‘wantonness’ or ‘wanton conduct’ has been defined by this court in cases other than those involving the guest statute (G. S. 1935, 8-122b), and it is difficult to find a more adequate definition of the term than is found in one such case—Frazier v. Cities Service Oil Co., supra (159 Kan. 655, 157 P. 2d 822), at page 666:
“ ‘. . . it may be concluded that as to the injuries inflicted, wanton conduct or wantonness comes between negligence on the one hand and willful or malicious misconduct on the other; that it is more than negligence and less than willfulness, and to constitute wantonness the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. Stated in another way, if the actor has reason to believe his act may injure another, and does it being indifferent to whether or not it injures, he is guilty of wanton conduct.’ ” (1. c. 442.)
In the very recent case of In re Estate of Wright, 170 Kan. 600, 228 P. 2d 911, extensive quotations including the above were made and the test stated followed. And see also Wright v. Pizel, 168 Kan. 493, 214 P. 2d 328, where the rule in Stout v. Gallemore, supra, was followed and where constitutionality of the guest statute was upheld.
The question presented by the demurrer to the amended petition is whether it contains a statement of facts that discloses the appellant was guilty of “gross and wanton negligence” as set forth in the above quotation and the various decisions mentioned. Limited to that feature, and without attempting a fully detailed review of the allegations, the appellee alleged that the appellant started his car and increased its speed to over 65 miles per hour, he ignored appellee’s request to slow down and immediately took his right hand off the steering wheel, placing his hand on his companion in the front seat and while the car was traveling at its highest speed of 70 miles per hour he steered or permitted the car to be driven off the road into a culvert; that he was guilty of negligence in that he was intoxicated and under the influence of liquor and the appellee had no knowledge of his intoxication or being unable to properly drive his car, he failed and refused to obey her request that he slow his car’s speed, he took his hand off the steering wheel, placed it on his companion and failed to guide his car, and he did not control his car and allowed it, driven at a speed of about 70 miles per hour, to go off the highway and crash into a culvert, injuring the appellee.
We have examined the several cases relied upon by the appellant, in which, but not accumulatively, it was held that evidence the defendant was intoxicated, or that he did not reduce his speed at plaintiff’s request, or that he took his hand off of the steering wheel and placed it on his companion, or that he drove at a high rate of speed over a rough road, or that he drove off the highway, did not convict the defendant driver of gross and wanton negligence, and we have no disposition to recede from what is said in those cases or to overrule them. But we think it is not proper to take up the allegations of the amended petition separately and by a “divide and conquer” process to conclude whether the amended petition stated a cause of action under the guest statute. Any pleading is to be construed in its entirety, and all of the allegations must be considered together, and it is not proper to segregate allegations from one another to determine sufficiency of a pleading. See e. g. Jones v. Jones, 161 Kan. 284, 293, 167 R. 2d 634; Wood v. Stewart, 158 Kan. 729, 732, 150 P. 2d 331; 41 Am. Jur. 337 and 71 C. J. S. 120. Such exceptions as there are to the rule are not presently important. Although it is possible to segregate the various acts with which the appellant is charged, that segregation itself tends to minimize the over-all effect of the several acts with which he is charged and is not a proper method of approach.
Considering the allegations of the amended petition in the light of what has been said, it is concluded that the acts of the appellant, while intoxicated and unable to properly drive, in driving his car at a high and increasing speed, in ignoring requests that he slow down, in taking his right hand off the steering wheel, in failing to guide the car and in allowing the car to leave the highway and crash into a culvert, with the result his guest was injured, are sufficient to show that he had reason to believe that such acts might injure another and was indifferent to whether they did or not and that he was guilty of gross and wanton negligence. We are not presently concerned with any question of proof, nor with any possible defense. We conclude that the trial court did not err in overruling the demurrer of the defendant to the amended petition of the plaintiff.
The ruling and judgment of the trial court is affirmed.
Harvey, C. J., and Thiele and Parker, JJ., dissent. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries sustained by plaintiff when the automobile in which she was riding collided with a tender on defendant’s engine at a grade crossing. A trial by jury resulted in a judgment for plaintiff. Defendant has appealed and contends, first, that its demurrer to plaintiff’s evidence should have been sustained because of the failure of plaintiff’s evidence to show actionable negligence on the part of defendant. Appellant further contends that in any event a new trial should be granted for alleged trial errors.
The record disclosed that east and west U. S. Highway No. 50 passes through the city of Hutchinson on Fourth street as it enters the city from the east. It is intersected at right angles by Halstead street. The center of Halstead street is the east city limits. In or near the city there are large grain storage bins and other industries situated near Fourth street both to the north and south. The main line of defendant’s east and west railway is about two-fifths of a mile south of Fourth street. Defendant has seven switch tracks which cross Highway No. 50 or Fourth street for the purpose of serving the industries in that area. The collision occurred on the second track from the east. This track serves, among other places, the Gano grain storage bins situated about 200 feet south of the highway. Just west of these bins are two tracks which as they proceed north and northwest run together, and a switch is situated about twelve feet south of the highway where cars can be switched from one of those tracks to the other. The track crosses the highway at an angle of 22.83 degrees west of north to the southeast. Just before the collision defendant’s switch engine and tender, which were on the west one of the two tracks immediately west of the Gano storage bins, had backed to the north and northwest across the highway ready to be switched onto the track near to the storage bins. The car in which plaintiff was riding collided with it near the north side of the pavement.
Evidence on behalf of plaintiff may be summarized as follows: J. Clair Harmon, husband of plaintiff, testified he had lived in Hutchinson since 1911; that he is the senior member of the Harmon Furniture Company; that his first business experience was as an automobile mechanic for two or three years beginning in 1914. He was driving a Pontiac car which belonged to plaintiff at the time of the accident. His wife, the plaintiff, was sitting in the back seat just back of him, his son Harold was in the front seat with him, and his son Richard was sitting back of Harold. They were returning from a month’s trip to New York and Chicago, where they transacted business connected with his store. The accident occurred about midnight July 12 and 13, 1947. They left Chicago at 6 a. m., or a few minutes later, stopped along the road for lunch, but did not stop for the evening meal. While he had lived in Hutchinson he had gone in and out of the town over Highway 50 “lots of times.” He knew the situation with reference to the switch tracks. He had never been held up by a train on those tracks. The switch tracks across the highway are flat with the pavement. The track where the collision occurred is located in the center of Halstead street. They were driving west. As they approached the “Brown Wheel,” two-fifths of a mile east of the place of the accident, there was congested traffic, which caused him to slow down to 15 or 20 miles an hour and pull off the pavement. He did not remember clearly everything that happened after that up to the point of the impact. As near as he could tell he pulled back on the pavement and could see lights down the road and everything looked clear. That is as far as he can remember about it. That he had no independent recollection of applying the brakes. After he left the Brown Wheel and pulled back on the pavement he “honestly believed” that he was not going over 50 miles an hour. Up to the point where his memory was clear he kept a lookout in front for signs, and for vehicles. He recovered consciousness the next morning in the hospital. As a result of the accident the plaintiff was seriously injured. He further testified that the distance from Chicago to Hutchinson is about 735 miles; that he traveled the entire distance on July 12; that two grade crossings at railroad tracks were crossed in approaching Hutchinson that night, one just out of Strong City and the other at Burrton, at an average speed of 55 miles an hour; that he knew the speed limit in Hutchinson was 30 miles an hour; that as one approaches the city there is a federal railroad crossing sign on the righthand side of the highway, about 14 or 18 inches around, which was about 400 feet from the crossing; that there were city limit signs about 175 or 200 feet •east of the crossing on the righthand side of the highway; that he knew the purpose of both signs, and “that he saw those two signs •on the night of July 12”; that he passed the highway sign 400 feet east at about 45 pr 50 miles per hour; that he had been in the automobile business and was acquainted with the mechanics of automobiles and that it would take around 185 or 200 feet to stop at •50 miles per hour; that as he approached Hutchinson the lights were adjusted for bright and would have revealed a vehicle or person 400 or 500 feet ahead of him. The car was a late 1946 or 1947 model, but a new car, had been driven only about 8000 miles, was in perfect mechanical condition, and that the tires were perfect.
Richard Harmon stated the maximum speed of J. C. Harmon while driving was between 50 and 55 miles per hour. He recalled approaching the Brown Wheel and the car slowing down there and pulling off to the side of the road; that the car picked up speed after that; that as the car approached the place where the collision occurred they noticed the most of the signs there; that they all knew that a railroad sign along the highway, a little round sign, was there; that he knew in a general way that there were some switch tracks on Fourth street; that the road appeared to him to be clear; that he did not see anything on the highway until the brakes were applied, and that at that instant he did not definitely remember of seeing anything in front of him where he had previously seen a clear road. He did not know the length of the skid marks, did not observe any foreman or flagman or anyone with a lantern just before the collision, and did not recall hearing a whistle or bell. After the collision he noticed that the tender was clear across the highway. He did not recall anything about the engine and tender prior to the accident and after the brakes were applied — “everything happened so quick.” He had been out along the highway on prior occasions and heard whistling for “the strawboard and what have you”; that he never saw a train on that switch track before. He was slightly hurt, but conscious and took Harold out of the car and helped remove his father. He testified as to other industries in that locality.
Harold Harmon testified he was occupying the front seat with his father at the time of the accident; that the car slowed down as they came to the Brown Wheel, after which his father accelerated the speed. He did not recall seeing the railroad sign as he came to it; that he looked in front and the road appeared to be clear until about the time the brakes were applied, then he saw “a black object, then ‘Boom’.”
John Robinson, chief of the detectives of the city of Hutchinson, heard of the accident by means of the police radio in his car and reached the scene shortly after it occurred. He took measurements of the skid marks and observed the engine and tender. Neither the switch engine nor car had been removed when he arrived. The tender was up to the north edge of the pavement. The skid marks measured 90 feet to the impact and 85 feet to the rear wheels. The skid marks were a steady line for a distance of over half way and from there on had breaks in them; that these breaks would mean one of two things — depressing and releasing the brake, or that the car had jumped. The east limits of the city are in the center of Halstead and Highway 50. There was a sign designating the city limits about 100 feet east and the standard highway crossing sign about 400 feet east of the crossing. The speed limit within the city is 30 miles per hour.
Phil Thrasher arrived at the scene of the accident shortly after it occurred, having been summoned by police radio. The occupants of the car had been removed when he arrived. The railroad crossarm sign was located on the west of the tracks at which the collision occurred. He does not remember whether it was dark on the east side of the tender. A lot of traffic on the highway had arrived by that time. The light on the engine tender was burning.
W. L. Kirkuff, the office manager of the highway department, had drawn a plat to scale in the vicinity of Fourth and Halstead from measurements made on the ground. He testified the plat represents the switch tracks which cross Highway 50. The scale of the plat is one inch to 20 feet; that the distance to the city limits sign, which reads, “Hutchinson City Limits Speed Limit 30,” is 134.2 feet east of the city limits; that the distance to the highway railroad sign is 381.7 feet; the distance from the track farthest east and the second track is 71 feet; that the only railroad crossarm sign is the one shown and located on the plat; that this sign is 12 feet high to the center of the cross and the cross extends two feet below and above the center; that he took measurements of the engine and tender and found the engine proper measures 37 feet long and the tender 27.3, making a total of 64.3 feet; that the tender is 10.2 feet high, with tank opening extending up another foot, for a total of 11.2 feet; that the distance from the switch down the second track to the north of the highway is 59.8 feet.
The deposition was received of Mrs. Barbara Moulder, the daughter of Robert Frank, who was living with her parents at the northeast corner of Fourth and Halstead at the time of the accident. She was in the living room when she heard the impact and her father then went outside. By that time people had started to collect. She noticed that the tender blocked the entire highway. The accident occurred on the second track, which is flat with the concrete highway. To the east there is a yellow and black sign that has reflectors on it. She doesn’t know whether she heard the whistle of an engine at the time of the accident, but about that time she had noticed that the engine, before approaching the intersection, had always either whistled or rung the bell; that whistles are constant during the harvest season when they are moving box cars so much; that the whistles were quite noticeable, and a great number of men with lanterns; that she saw some box cars to the south of the highway on the east track, which extended to near the edge of the highway.
Robert Frank testified that he lives at Fourth and Halstead and his house is probably 20 feet from the easterly switch track; that, the track on which the accident occurred is about 50 yards farther west; that he was in the house at the time of the accident and heard the brakes screech. He went from the house to within 60 or 70 feet of the accident and someone came on around from the rear of the tender and someone else came from the northwest. He did not know whether this second person had a lantern. He then went to call an ambulance. He had seen no other cars come up by that time. He thought there was a whistle before the crash, but he had no idea how long before. He didn’t notice any box cars south of the highway. He had heard whistles of switch engines in that vicinity when no crossing was being made. The main line tracks are about two-fifths of a mile south of Fourth and Halstead; that prior to the accident he had seen cars switch across the highway. After the accident he noticed more whistling and flares.
Mrs. Sumwalt, a widow, residing in Hutchinson, testified that she arrived soon after the accident; that she and her “boy friend” approached the crossing from the west. She was asked by the engineer to stay with Mrs. Harmon until the ambulance came, and she did. It was very dark and she did not recognize Mrs. Harmon until she struck a match. Mrs. Harmon was lying on the shoulder of the road. They drove around back of the engine and she believed that they drove partly off the pavement.
Wilbur L. Bybee testified that he was a switchman with the Santa Fe and a member of the crew at the time of the accident. The other members were switch foreman, Joe Mullett; field man, Fred Tullís; fireman, Bill Moran; and engineer, Hawkins. He was pin puller and was on the engine as they came toward the intersection. It was on the west of the two tracks that are parallel and directly to the west of the Gano elevator. The engine was backing to make a switch in order to come onto the other track. He was riding the right front footboard of the engine as it was backing. In order for the switch to be accomplished the front driver wheels had to clear the points of the switch track in order to throw the switch, which was located south of Highway 50 and east of Hal-stead street; that as the engine backed he gave the engineer a signal to stop as the driver wheels got a little past the switch, and he stepped off of the footboard just as the engine stopped, and then heard a noise. The engine had traveled maybe three or four feet after he had given the signal; that as the engine was approaching and coming into the highway it was not moving over a walking speed; that when he heard the noise he went around to see, and at the rear of the tender he saw the automobile rammed into the left rear corner of the tender. When he heard this noise it was simultaneous with the stopping of the engine and tender. The fireman was in the cab of the engine on the left side, which would be on the east side. Tullís was at the elevator; he did not know where Mullett was. He had come on duty at 11 p. m. and worked only an hour when the accident happened. He had been working for the Harmons since September 3, 1947, for about a year, but did not discuss the accident with any of the Harmons during the time he worked for them. He further testified that the locomotive and tender on this occasion had both head and rear lights, which were burning; that as it approached the intersection the whistle was blown. The whistle started when the locomotive was two or three car lengths away, or just after it left the elevator, and that he heard the bell ringing; that the bell started ringing before the whistle blew and continued after the whistle; that the locomotive was a steam type, coal-burning engine; that the grates from the locomotive could thr.ow a red glow on the ground at night, and he had seen them do so; that he did not know whether there was any difference between the lights at the front and at the rear of the tender, and that the light at the rear of the tender is on a stand above the tender about three feet. He identified the locomotive in a picture and stated the rear headlight shown in the picture is the one he had described.
It was stipulated that the railroad company drafted the plans and had constructed the two tracks on the west side of the Ganó elevator, and the switch tracks and switch, about 1932.
A traffic flow map and survey of the State Highway Commission was admitted in evidence, also a chart showing the distance required to bring an automobile to a stop at different speeds, also typewritten statements concerning plaintiff’s hospitalization and treatment, signed by several doctors.
W. C. Baisinger testified he was superintendent of the Western Division of the Santa Fe at Dodge City and brought with him the Standard Code of the Association of American Railroads Operating Rules. He identified one of the rules, which reads:
“When cars are pushed by an engine and the conditions require a trainman must take a conspicuous position on the leading car and when shoving over public crossings at a grade not protected by a watchman or by gates, a member of the crew must protect the crossing.”
He testified the Santa Fe has a similar rule.
The plaintiff testified thát during the 30 years in which she had been married to Mr. Harmon she had often ridden with him in automobiles and that she felt very safe in riding with him. She further testified that she recalled that when they came to the Brown Wheel there were cars coming; that her husband slowed his car for the others to proceed. After the cars left they had the highway clear and picked up speed; that she looked down the highway, as she always does, and watched for anything and saw nothing and thought the road was perfectly clear; that she woke up in the hospital; that she did not recall the brakes being applied.
Defendant demurred to plaintiff’s evidence upon the ground “that the plaintiff has failed to prove any cause of action against the defendant”; also upon the ground of contributory negligence of the plaintiff, but we do not go into that.
In plaintiff’s petition the alleged acts of negligence of defendant are stated at length and in much detail. Instead of setting them out as stated in the petition we use the summary of them as stated in the court’s instructions, to which there appears to be no complaint, as follows:
“1. That the method in which the tracks were laid out and the switch and sidings installed made it necessary for an engine to block a busy highway in order to switch from one of these two parallel tracks to the other.”
In the presentation of plaintiff’s case it was stipulated that defendant constructed these tracks and the switch in 1932, about fifteen years prior to the accident here involved. In plaintiff’s petition it was alleged they had been used frequently since they were installed. There is no suggestion in plaintiff’s evidence that any accident had ever occurred by reason thereof prior to the one here in question. We think it well settled a railroad company has the right to construct upon its right of way any tracks, switches and cross tracks which it deems necessary for the proper conduct of its business, even though they cross highways or streets where there is vehicular or pedestrian traffic. There is no suggestion in plaintiff’s evidence that these tracks and switch were installed and used contrary to any statute or to the rules and regulations of any federal or state board or commission which has anything to do with the matter. The result is that the fact of the switch and tracks being installed and used does not tend to prove negligence of defendant.
“2, That the defendant failed to erect or maintain a railway crossing sign to the east of these tracks to warn those approaching from the east and that the sign which was erected was west of these tracks and was dim, old and worn and not lighted.”
We think the location of this sign had no causal connection with the accident. The rule is well stated in Corkill v. Thompson, 169 Kan. 38, 217 P. 2d 273, where it was held:
“The purpose of highway signs or signals indicating a railroad crossing is to warn of approaching trains and not of trains already occupying the crossing.”
In the opinion is cited our earlier cases of Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593; Sheets v. Baldwin, 146 Kan. 596, 73 P. 2d 37; Bledsoe v. M.-K.-T. Rld. Co., 149 Kan. 741, 90 P. 2d 9; Shepard v. Thompson, 153 Kan. 68, 109 P. 2d 126. Each of those cases cites additional authorities. Neither is the fact that the sign was “dim, old and worn” of any importance. If the contention that the sign was not lighted is intended to mean that the sign itself did not have lights upon it we think it never has been the practice, or any authorized requirement, that such signs should have lights on them. If the contention means that the area of the sign was not lighted, we know of no statutory or other requirement requiring such light. In this case, however, the tender of the engine had on the rear a light which we understand to be a standard headlight of a locomotive. As it backed across the street it would naturally light up a considerable area to the north and west. More than that, the evidence in behalf of plaintiff, and by the plat introduced in evidence, disclosed that this sign could have been seen by one in an automobile approaching from the east for a distance of as much as 590 feet, even if the tender of the engine had been entirely across the highway. More than that, the driver of the automobile in which plaintiff was riding was familiar with the crossing, as were perhaps the other occupants of the car. Aside from these secondary considerations just mentioned the presence of the tender on the track was a sign and warning to all approaching it irrespective of the presence or absence of the crossarm sign.
“3. That although the defendant’s employees saw and observed the approach of the automobile, they nevertheless continued on to and across the highway and into the path of the automobile.”
This point is not well taken for the simple reason that there was no evidence presented on behalf of plaintiff which showed, or tended to show, that any employee of defendant saw and observed the approach of the automobile. The only member of the switch ing crew called by plaintiff to testify was Bybee, wbo was on the front end of the engine until he got off to turn the switch. He did not testify that he saw the automobile approaching. W. M. Moran, a member of the switching crew and the fireman, called to testify by defendant, did testify to seeing the automobile in question approaching. This testimony, of course, cannot be considered in passing upon a demurrer to the evidence. More than that, if it were considered it would not be helpful to plaintiff. Joe Mullett, the foreman of the switching crew, was not living at the time of the trial and his deposition had not been taken. No one called as a witness on plaintiff’s behalf testified to what Mullett did or did not see. The result is that the evidence offered on behalf of plaintiff wholly fails to establish this ground of negligence.
“4. That the defendant failed and refused to cause a flagman or a crewman to warn the traffic of the approach of the locomotive and failed to use any lights or flares for such purpose, and failed to use the whistle in time to warn the approaching traffic in time to avoid a collision.”
No witness called by plaintiff testified that a flagman or crewman was not out in the street to warn approaching traffic. There was evidence of defendant tending to show that Mullett, the foreman of the switching crew, was out in the street with a lighted lantern performing the very duties it was alleged were not being performed. But, again, we cannot consider this evidence on the demurrer to the evidence. We must and do leave it with the statement that the absence of a flagman or crewman to warn the traffic was not supported by any testimony or other evidence offered on plaintiff’s behalf. Pertaining to the contention that defendant failed to use any lights or flares for such purposes, we see no evidence in the record, other than the fact that a collision occurred, that there is any necessity of using flares or lights other than the lights that were being used. The contention that defendant failed to use the whistle was thoroughly disproved by the testimony of the witness Bybee, called by plaintiff. He testified not only that the whistle was blowing, but that the bell was ringing.
The result of this analysis is that there was no substantial, competent evidence to establish negligence of the defendant.
There is not much else to this lawsuit. Defendant in its answer did not plead contributory negligence of plaintiff, but after she had testified that was included as a ground for the demurrer to plaintiff’s evidence. Much of the brief, particularly the brief of ap pellee, is devoted to this question. In view of our conclusion that plaintiff’s evidence shows no actionable negligence of defendant it is not necessary to discuss plaintiff’s contributory negligence, and we base no decision thereon.
By a cross appeal appellee contends the trial court erred in not giving her requested instruction respecting wantonness and refusing to submit that question to the jury. We see nothing in the record, and certainly not in plaintiff’s evidence, to indicate wantonness on the part of defendant or its employees; hence, the trial court did not err in refusing to submit that question to the jury.
Counsel for appellee in their brief argue the doctrine of the last clear chance. By doing so they concede negligence of plaintiff, but we give no force to this for we find nothing in the evidence that would justify the application of the doctrine of last clear chance.
Counsel for appellee speak of the heavy traffic on U. S. 50. Whatever the traffic may have been at other times plaintiff’s evidence clearly discloses that there was no other traffic on the highway after the automobile in which plaintiff was riding passed the Brown Wheel from either the east or the west. Directly after the collision one car came from the west. If there were standing cars on the first track south of the highway there is no indication that was a traffic hazard. None of the occupants of the car testified to seeing them.
Counsel for appellee in their brief talk about the question of joint tort feasor and the right of plaintiff to sue one or both of them, referring, as we understand, to the negligence of the driver of the automobile in which plaintiff was riding, alleged in defendant’s answer, and the negligence of the railway company. This argument would have some force if the railway company were negligent, but since it is not, as we hold, the discussion is without merit.
We predicate our decision upon our holding that plaintiff’s evidence discloses no actionable negligence of the defendant, as hereinbefore discussed.
Counsel for appellant have presented and argue a number of alleged trial errors. While our tentative view is that some of these would require a reversal for a new trial we have no occasion to go into them here in view of our holding that no actionable negligence of defendant was shown by plaintiff’s evidence. It would be no kindness to any of the parties to this action to reverse the case for trial errors.
The result of what has been said is that the judgment of the trial court must be reversed with directions to render judgment for defendant.
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The opinion of the court was delivered by
Wertz, J.:
The questions presented in this appeal concern the validity of the delivery of two deeds during the lifetime of the grantor and the trial court’s interpretation of certain reservations contained in each of said deeds.
The facts may be stated as follows: Minnie Kruckenberg was a resident of Kingman County, Kansas, and owned certain real estate located in Kingman County. On June 19, 1946, she had prepared two warranty deeds, the grantee in one deed being her son Walter, and the grantee in the other her son Theodore. The two clauses pertinent here were identical in the two deeds. The granting clause in each deed, with the exception of the legal description of the real estate conveyed reads:
“Witnesseth, That said party of the first part . . . does . . . grant, bargain, sell and convey unto said party of the second part, his heirs and assigns, all the following-described real estate........ .........[description].........
“Except, however, grantor reserves all right, title and control of said real estate as long as she shall live.
“To Have and to Hold the Same, Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, forever.
“And said Party of the first part for herself, her heirs, executors or administrators, does hereby covenant, promise and agree, to and with said party of the second part, that at the delivery of these presents she is lawfully seized in her own right, of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above granted and described premises, with the appurtenances; that the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances, of what nature or kind soever; except life estate as above set out, and that she will warrant and forever defend the same unto said party of the second part, his heirs and assigns, against said party of the first part, her heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.”
The italicized words in the reservation and warranty clauses were no part of the printed deed form, but were inserted therein by typewriter at grantor’s request.
On June 19, 1946, Mrs. Kruckenberg went to the Isabel State Bank, conversed with Charles Meairs, cashier, and left the two above mentioned deeds at the Isabel State Bank with instructions to deliver them to no one until her death and then deliver the same to her sons' Walter and Theodore. Subsequent to leaving these deeds with the bank and a short time before her death, she again advised Mr. Meairs, the cashier, to deliver these deeds to her two sons upon her death. She also had a conversation with her brother in which she advised him of the making of the deeds, where they were deposited, and that they were to be delivered to her two sons upon her death, and that the sons were to receive title to these respective pieces of property by virtue of such deeds. The two deeds remained at the Isabel State Bank until the death of Minnie Kruckenberg, which occurred in June of 1950. They were thereupon turned over to the respective grantees and by them recorded in the register of deeds’ office in Kingman County, and each of the grantees is now claiming to be the absolute owner of the real estate described in his deed and entitled to the full possession thereof.
Minnie Kruckenberg on September 9, 1946, made and executed a last will and testament, paragraphs four and five of which purported to make certain dispositions of the same real estate as conveyed by the warranty deeds above referred to. After decedent Minnie Kruckenberg’s death, and on the 26th day of July, 1950, her last will and testament was admitted to probate in the probate court of Kingman County, Kansas. Charles A. Meairs, the cashier of the Isabel State Rank, was appointed as executor of her will and qualified as such. He inventoried the real estate covered by the two deeds here in question as a part of the decedent’s estate and then filed in the district court of Kingman County two actions, one against Walter Kruckenberg and wife, being case no. 38,362 in this court, and the other against Theodore Kruckenberg and wife, being case no. 38,363 in this court, in which he as executor asked to have the deeds to the respective grantees set aside and title quieted to all of such real estate in the executor.
Prior to institution of such suits the executor, through his attorney, filed an application in the probate court proceedings to have S. S. Alexander appointed as guardian ad litem for the children of Walter Kruckenberg and Theodore Kruckenberg, and as trustee for their unborn heirs. At the time he filed this application, there was nothing pending in the probate court of concern to the minor heirs. On the same day the application was filed, an order was made by the probate court appointing S. S. Alexander as such guardian ad litem and trustee. Soon thereafter Mr. Alexander ap peared before the probate court and filed an application asking that he be permitted to join with the executor in the prosecution of the case against Walter Kruckenberg and an order was made on the same day making such appointment. At die time of filing the suit,, being case no. 38,362, S. S. Alexander as guardian ad litem and as; trustee for unborn and unascertained beneficiaries purported h> join as a plaintiff.
In the respective petitions filed in the district court, plaintiffs alleged there was no valid delivery of the deeds in question and that the deeds were testamentary in character. To these petitions each of the defendants filed an answer alleging that he claimed title to the real estate described in the respective deeds by virtue of those deeds, that there was a valid delivery of the deed in each case, that it was not testamentary in character, and that the deed had been executed and delivered in accordance with law, and was a valid conveyance of the real estate. In the Walter Kruckenberg case, defendant also contended that S. S. Alexander as guardian ad litem and as trustees for certain unascertained beneficiaries had no authority or right to maintain the action or to join as a plaintiff in. the prosecution thereof.
These cases were consolidated for the purpose of trial and the district court found that there had been a valid delivery of the deeds in question but that they were testamentary in character and therefore void. The district court also found that S. S. Alexander had no authority to join as a party plaintiff in the action in the district court, and dismissed the action as to him.
An appeal was perfected by Walter Kruckenberg and Theodore Kruckenberg from the decisions and rulings made by the lower court adverse to them. It is their contention the court erred in its finding that the deeds were testamentary in character.
Two questions are presented: (1) Were the two deeds executed by the grantor delivered in her lifetime; and (2) Were the instruments, in form warranty deeds, testamentary in character, or did they convey a present interest?
As to the first question, we concur in the lower court’s finding of an unconditional delivery of the two deeds during the lifetime of Mrs. Kruckenberg, and a review of the record discloses ample evidence to support the court’s conclusion in this regard, including testimony of appellant’s witnesses. The court’s finding, so supported by evidence, will not be disturbed on appeal.
This brings us to the second and important question: Were the deeds testamentary in character, or did they convey a present title? At the outset it will be noted that the two deeds in question are general warranty deeds regularly executed and delivered by the grantor in her lifetime. Our primary object is to interpret these written instruments in order to ascertain and effectuate the intention of the grantor at the time of their execution and delivery. In pursuance of this problem, it is necessary for us to draw upon the accepted modern rules of construction. Although a certain degree of formality is associated with deeds of real estate, technical expressions of established meaning are generally employed to describe the interest to be created thereby. These are not essential; they are but guideposts to assist in the search for the true intention of the parties which must ultimately control. (26 C J S 320; 16 Am. Jur. 540, 541). We have said the intention of the grantor as expressed in a deed is controlling and must be gathered from the four corners of the instrument. (Howe v. Howe, 94 Kan. 67, 145 Pac. 873). Under this rule permitting and requiring a survey of the whole instrument by the court, we said in Nolan v. Otney, 75 Kan. 311, 313, 89 Pac. 690:
“. . . The real intent of the grantor being the object of our search, the inquiry is, not what do his words mean in strict legal contemplation, but in what sense did he use them — what idea did he employ them to convey. The decisions are not in harmony on the subject, but a well-defined tendency clearly appears in the more recent cases to uphold the deed if possible, and if necessary to that end to regard it as speaking with colloquial freedom rather than with formal accuracy.”
In construing the deeds in the instant case, it will be noted that after expressly granting and conveying the premises, the grantor reserves “all right, title and control of said real estate as long as she shall live” and in the warranty clause grantor warrants title and includes the statement “except life estate as above set out”.
It will be observed that grantor does not undertake to reserve all that is granted, but only an estate for life, in the land conveyed. Reading the deed in its entirety, it amounts to nothing more than a conveyance in fee simple to the grantee with a limitation that the title thus conveyed in praesenti goes encumbered with a life estate in the grantor. (Durand v. Higgins, 67 Kan. 110, 72 Pac. 567). In the somewhat similar case of Brady v. Fuller, 78 Kan. 448, 96 Pac. 854, we stated:
“An instrument in the form of a deed, duly acknowledged and recorded, which in express terms does ‘grant, bargain, and sell, convey and confirm’ land to a grantee, and which reserves from the land conveyed a life-estate in the grantor, and, following this reservation, contains another giving the grantor power ‘to mortgage, encumber, sell, lease, convey or otherwise dispose of said real estate’, and which, in the habendum clause, also contains a recital and condition that if ‘the said party of the second part shall die before the death of the said party of the first part then and in that event the estate hereby conveyed shall revert to and vest in the said party of the first part just as if this deed had not been made’, is not testamentary in character, but is a deed conveying a present title to the grantee, subject to a life-estate in the grantor; and it is further held that the reservation in the grantor of power to mortgage, encumber, sell, lease or convey the real estate refers to the control and disposition of the reserved life estate.”
When the grantor in employing the language used in the deeds in the instant case reserved all right, title and control as long as she lived and warranted title except as to her life estate mentioned, we are constrained to hold that the word "title” as employed in the limitation means the right to possession during her lifetime. She may have feared that the usual language employed to convey a life estate meant a mere occupancy only and so to put her right beyond doubt, she made an express reservation giving her power to lease, encumber, sell or dispose of her reserved life estate by making an express reservation of right, title and control as long as she lived. It cannot be said that such reservation in any manner had reference to the fee simple estate which passed to the grantees upon her delivery of the deeds to the bank as related.
After an extensive review of the authorities it appears that the trend of modern decisions is to uphold such an instrument as a deed although it may contain words suggestive of the idea that it is not to take effect until a later date. The general rule is best stated in 16 Am. Jur. 550, § 198:
“In a few cases instruments in the form of deeds which contain reservations of the right, title and interest during the maker’s life have been construed in order to ascertain whether they are deeds or wills. Such instruments have been consistently held to be deeds, rather than wills', and not reservations of the title in fee, but mere reservations of .the use of the property during the lifetime of the maker. Thus, an instrument in the form of a deed reciting consideration, containing the usual words of grant and warranty, and providing that the maker reserves to himself his right to the property during his life, after which the grantee is' to have it in fee simple, is a deed. An instrument drafted in the form of a deed, declared in the body thereof to be a deed, and attested as a deed does not become a will by the inclusion therein of a clause wherein the maker reserves title in the described land for and during his nat ural life and provides that at his death the deed is to be a fee simple title to the grantees, because such an instrument is construed as passing title in praesenti with the right of possession postponed until the maker’s death.”
Following the general rule stated, attention is invited to the note in 11 A. L. R. beginning at page 67; the note in 76 A. L. R. beginning at page 646; 8 R. C. L. 1095; Thompson on Real Property, Vol. 4, pages 387, 388; Yordy v. Yordy, 169 Kan. 211, 217 P. 2d 912; Leach v. Pratt, 30 Tenn. App. 330, 205 S. W. 2d 970; Noffsinger v. Noffsinger, 303 Ky. 344, 197 S. W. 2d 785.
It is next contended that the trial court erred in holding that the guardian ad litem appointed by the probate court for certain minor heirs had no authority to join with the executor as a party plaintiff in a separate and distinct action brought in the district court for the purpose of setting aside the deeds in question. G. S. 1949, 59-2205 provides:
“The petition of a person under legal disability shall be by his guardian or next friend. When it is by his next friend the court may substitute the guardian, or any person, as the next friend. The court may appoint a guardian ad litem in any probate proceeding to represent and defend a party thereto under legal disability.”
It is noted that the statute specifically provides that a petition of a person under legal disability shall be by his guardian or next friend and not by a guardian ad litem. A guardian ad litem may be appointed in any proceeding in the probate court to represent and defend the party under disability. This is applicable only after the proceedings have been filed by a proper party in an action where the minor may be interested. We find no provision in the probate code which grants authority to the probate court to appoint a guardian ad litem for the purpose of maintaining an action for the recovery of property in the district court.
Our code of civil procedure, G. S. 1949, 60-406, provides the only method by which a suit can be instituted on behalf of a minor. The statute says that the action must be brought by his guardian or next friend, and this does not include guardians ad litem. Rallantine’s law dictionary defines a guardian ad litem to be a person appointed by a court to look after the interests of an infant when his property is involved in litigation. He manages the defense of an infant defendant where there is no parent or guardian.
From an examination of the guardian’s brief, we find no authorities cited sustaining his contention as to the right of a guardian ad litem appointed by the probate court to join with the executor in this district court action and our limited search has revealed none.
In view of what has been said, it necessarily follows that the portion of the judgment of the lower court finding that the deeds in question were unconditionally delivered by the grantor in her lifetime and that the guardian ad litem had no authority to join as a party plaintiff in the action should be affirmed, and that portion thereof cancelling the deeds in question should be set aside with directions to render a judgment holding the deeds when executed and delivered conveyed a fee simple title to defendants subject only to a fife estate in the grantor.
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The opinion of the court was delivered by
Thiele, J.:
This was an action by a person entitled thereto to recover the entire amount of compensation due him by reason of the failure of a corporation liable therefor, to pay installments of compensation when due and within two weeks after demand, as provided by G. S. 1949, 44-512a, and the appeal arises out of the following:
In October, 1949, Preston Miller commenced a proceeding before the workmen’s compensation commissioner to recover compensation from his employer, Massman Construction Company, a self-insurer, hereafter referred to as Massman, and obtained an award in his favor. Massman appealed to the district court and that court on November 28, 1949, made an award in favor of Miller and against Massman based on total disability from October 9, 1948, fur an indefinite period of time not to exceed 415 weeks; that there was due and owing 111 weeks of compensation at $20 per week or $2,200 less $860 previously paid, and less another item, leaving a balance of $1,300, all of which was past due and was ordered paid in one lump sum, and that compensation from November 24, 1949, should be paid to Miller in the future at $20 per week for an indefinite period of time not to exceed 415 weeks. Judgment was rendered in favor of Miller against Massman for $1,300 and costs and the award of the workmen’s compensation commissioner was modified as set forth in the journal entry of judgment. From that judgment Massman appealed to this court. No supersedeas bond was given to stay the judgment. This court affirmed the judgment of the district court, its opinion being filed June 10, 1950, and appearing as Miller v. Massman Construction Co., 169 Kan. 499, 219 P. 2d 429. The mandate of this court to the district court was issued under date of July 10, 1950, and on July 11, 1950, the mandate was received and filed by the clerk of the district court.
On July 11, 1950, Miller wrote a letter and sent it to Massman by registered mail in which he stated: “Please send my compensation due me as I need it bad.” For some reason not disclosed by the record Massman did not inform its attorney Snyder of the receipt of this letter until two weeks after it admittedly received the same. On July 18, 1950, Snyder wrote Cahill, who was in charge of accident claims of Massman, informing him that Mass-man’s petition for a rehearing in the above case had been denied and on July 26, 1950, Cahill computed the amount due, including the week ending July 25, 1950, and telephoned Snyder. On the same day Snyder called Cubbison, one of Miller’s attorneys, inquiring as to the correctness of the amount due. Cubbison told Snyder he had not checked the amount due and it would be up to Hudson, a Missouri attorney of Miller, to say whether the amount was correct and he would have Hudson call Snyder. Hudson did call Snyder, who was out of his office. For reasons not necessary to detail Snyder did not talk to Hudson until July 27, 1950, when Hudson informed Snyder he was insisting on the entire award being paid.
On July 28, 1950, Miller commenced the present action against Massman. On September 7, 1950, he filed an amended petition, the sufficiency of which was not challenged, alleging the award and judgment in his favor and that the judgment was affirmed by this court and that the mandate was received in the trial court on July 11, 1950; that on the same day, Miller made written demand by registered mail upon Massman, pursuant to G. S. 1945, 44-512a, and that thereafter payment of compensation due was not made or paid within two weeks, and by reason thereof defendant was indebted to him for all of the unpaid balance of compensation awarded him under the award and judgment in the amount of $7,440, and he prayed judgment for the same.
Massman’s answer filed October 6, 1950, admitted the judgment, its affirmance and the receipt of the mandate and denied other allegations of the petition and alleged, at length, that there was another action pending for the same cause; that Miller should not maintain this action for the reason he had had execution issue in the first action; that he should not maintain the action for the reason the mandate of the supreme court was not spread of record or made a final judgment on July 11, 1950, and that it was not spread of record until September 28, 1950; that Miller should be estopped from maintaining the action because he had used the processes of the court to collect the installments due up to the date he filed this action and had accepted subsequent installments up to September 28th and regularly each week thereafter; that the demand for a lump sum payment was premature because the mandate of the supreme court had not been spread of record, and that Miller had waived his right to accelerate future payments of compensation, to collect in one lump sum and to maintain this action as one for the collection of a debt and had waived all benefits of the above mentioned statute by his collection and acceptance of installments due to September 28, 1950, and subsequently. Mass-man’s prayer was that Miller take nothing.
Although pleaded at great length the substantive effect of Miller’s reply was to deny the allegations of the answer.
At the trial in division No. 4 of the district court evidence was received concerning Miller’s demand of July 11, 1950, on Massman; correspondence and conversations between Snyder and Cubbison and Snyder and Hudson, and other matters we shall not detail. It was also shown that the mandate of this court was received, filed and entered on July 11, 1950, that on September 9th a praecipe for an execution (intended to be in the original cause) was filed and an execution issued, and that on September 25, 1950, a motion to spread the mandate was filed by Massman. This last motion was heard by the judge of division No. 3 of the district court. In the journal entry showing the ruling on the motion it was recited the court ordered the mandate spread of record; that the proceeding was one for compensation, and after reciting facts as to the judgment, its amount and that computation should be made, found there was $2,180 due in one lump sum and thereafter claimant should be paid $20 per week “as in the original journal entry of judgment specified.” It was further recited that an execution was prematurely and erroneously issued commanding the sheriff to make (collect) a judgment to September 7, 1950, in the amount of $2,120; that the execution was erroneously numbered in another suit between the same parties subsequently filed, etc.; that the execution was still outstanding, etc., and should be ignored but Massman should be ordered to pay $2,180 in one lump sum by paying to the sheriff the amount of $2,120 and by paying the remaining $60 directly to the clerk of the court. No appeal was taken from this order. It is noted the abstract in the instant action discloses that Massman paid the sum ordered paid the sheriff, who paid the same to the clerk, and also the sum ordered paid to the clerk, the costs and, at least up to the time of trial of the instant action, weekly installments of $20, and it was undisputed at the trial that Miller had never collected any of these amounts from the clerk of the court.
The trial court made findings of fact, which covered the original award of compensation, the appeal to the district court and that the judge of division No. 1 had entered judgment that $1,300 past due compensation was due Miller; that the mandate of the supreme court to the district court was received and filed by the clerk on July 11, 1950; that Miller made demand on July 11, 1950, and that Massman received it July 12, 1950, and on July 26, 1950, two weeks from date of receipt of demand, Massman called its attorney who tried to contact Miller’s attorney “but no actual contact was had until late in the evening of July 27, 1950;” that Miller filed the instant action on July 28,1950; that Massman filed its motion to spread the mandate of this court and on September 28th it was so ordered, .the order including: “the amount of compensation due the claimant as of this date to be paid in one lump sum, computed;” that .Massman paid the amount as so computed, which amount is in the hands of the clerk, together with subsequent weekly payments of $20; and
“That as of November 28, 1949, the date of the judgment of Judge E. L. Fischer, the claimant in the Workmen’s Compensation case, now plaintiff herein, had rendered a judgment in his favor in the sum of $1,300 for past due compensation, and that said judgment was then adjudged by said Court and was later adjudged and affirmed by the Supreme Court of Kansas on July 11, 1950, and said judgment and affirmation was at that time and is now in full force and effect.”
As matters of law the trial court concluded that Miller’s letter of demand was in compliance with G. S. 1949, 44-512a, and that Massman, although compensation had been previously adjudged, failed to pay in compliance with the demand; that the judgment and mandate of the supreme court did not reverse the judgment entered in division No. 1, but on the contrary affirmed the judgment and the receipt and filing of the mandate by the clerk of the district court was all that was required by law; that the judgment of division No. 1, appealed from, set an amount as being due and the matter of computation of the additional weeks was not a matter requiring judicial determination; that judgment should be rendered for Miller in accordance with the prayer of his petition.
Massman moved for a new trial. On the hearing thereof, the motion itself was denied, but the judgment was amended to provide that there be credited thereon amounts previously paid the clerk by Massman. Thereafter Massman moved the court for an order to set aside a part of one finding of fact. On hearing, the trial court made a change of one word and overruled the motion.
In due time Massman perfected its appeal to this court and filed its supersedeas bond to stay execution. Its specification of errors covers the matters presented in its brief and hereafter discussed.
Before taking up Massman’s contentions, we take note of the statute on which Miller relies. It is G. S. 1949, 44-512a, and for our purposes reads:
“That if any .compensation awarded, ... or adjudged under the provisions of the workmens compensation act of this state or any installment thereof shall not be paid to the employee . . . when due, and service of written demand for payment has been made ... by registered mail on the . . . corporation liable to pay the same, payment of said demand is thereafter . . . not made within two weeks from the date of service of said demand, then the entire amount of the compensation awarded, . . . or adjudged shall become immediately due and payable and said employee . . . may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt. . . .”
Constitutionality of. the statute was upheld in Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860, 155 A. L. R. 546.
Massman’s diligent counsel has filed an extended and detailed brief in support of its contentions of error... By reason of our con elusions it is not necessary that we mention and discuss every question presented nor review all of the citations of authority made.
Massman makes a preliminary statement as to the original judgment of November 24, 1949, and its affirmance on July 10, 1950, the issuance of an execution thereon on September 9, 1950, at the instance of Miller, and that Massman had filed its motion on September 25, 1950, that the mandate of the supreme court be spread of record, and asks whether the court on hearing the motion may: (1) order it spread of record; (2) determine the amount of compensation due; (3) order Massman to satisfy the execution; and (4) direct Massman to pay installments of compensation which accrued between issuance of the execution and the date of hearing the motion.
Although not presented in the order here stated, the gist of Mass-man s argument is that affirmance by this court of a judgment in a compensation case, requires the trial court to enter a new award covering accumulated payments in one lump sum, and that while it is a matter of computation the parties might disagree and until the matter is settled by an order and judgment of the district court an execution may not issue, and further that no such order may be made until some party moves the court to spread the mandate of record and render such lump sum judgment; that the mere act of the clerk of the court in receiving and filing the mandate is not sufficient, and our attention is directed to various sections of the code of civil procedure dealing with mandates and the duties of the clerk in connection therewith and generally. We do not deem it necessary to take up and discuss these questions as thus presented, nor the interesting question whether a mandate which merely affirms, but does not modify or reverse, a judgment- of the district court must be spread of record before the judgment appealed from may be enforced, for the reason it conclusively appears here that the district court rendered its judgment for $1,300 and $20 per week thereafter on November 24, 1949, and no supersedeas bond having been given in compliance with G. S. 1949, 60-3322, the appeal to this court did not stay that judgment and nothing prevented levying of an execution at any time after rendition of the judgment. In making the above statement we take note that although an execution issued there was no levy under it nor any collection made as the direct result of it, as is disclosed by the order of September 28, 1950, made when the mandate was spread of record, and the effect of which order is next considered.
Massman next contends that the order of the district court made September 28, 1950, as the result of the hearing of its motion to spread the mandate, fixed the rights of the parties, that there was no appeal from that order and that it became res judicata on the question of Miller s right to collect the entire amount of compensation, and our attention is directed to quotations from Wharton v. Zenger, 163 Kan. 745, 186 P. 2d 287; Brewington v. Western Union, 163 Kan. 534, 183 P. 2d 872; and Burton v. Ostertag, 166 Kan. 374, 201 P. 2d 676; where that doctrine is discussed and applied. The force of those decisions is recognized, but whether the rule has application here depends upon the content of the court’s order. Although perhaps repetitious, the motion of Massman was that the court order the clerk to spread upon the record the mandate of the supreme court “and to enter such orders and judgments as shall be ordered to be entered by such mandate . . .” The court found the motion should be sustained. After reviewing the original judgment, and its terms, and affirmance by this court, the court found that as of November 24, 1949, a balance of compensation was due of $1,300 and that since that date 44 weeks of additional compensation had accrued, making the total amount to be paid in one lump sum to and including September 28, 1950, $2,180, and thereafter the claimant was to be paid weekly compensation at the rate of $20 per week “as in the original journal entry of judgment specified.” We note that although the court made the above finding, it rendered no judgment thereon. The remaining part of the order dealt with the execution found to have been erroneously issued and ordered Massman to pay up the accrued and unpaid compensation. At no place in the order was there any command to Massman to pay weekly installments. As we construe the order of September 28, 1950, its purpose was to calculate the amount presently due on the original judgment; it did not purport in any manner to render any new or different judgment; it found that Miller was to be paid compensation as specified in the former judgment, and, in effect, it was only a reiteration of the original judgment and an affirmation of it. In our opinion this order of September 28, 1950, was not res judicata on the issues presented in the case at bar.
Massman next contends that under the circumstances of the case Miller was estopped to prosecute the action to judgment. This contention covers conduct of counsel, effects of issuance of execution and waiver. His premise seems to be that on July 12, 1950, Miller had made a written demand for payment of compensation due; that just two weeks later Massman’s attorney Snyder telephoned Miller’s Kansas attorney Cubbison, seeking verification of the amount due; that Snyder was without knowledge Miller’s demand had been served upon Massman; that Cubbison referred Snyder to Miller’s Missouri attorney Hudson and Snyder did not succeed in talking to Hudson until July 27, 1950, when Hudson insisted on full payment; that Miller and his counsel expected Snyder would act upon the representations (and apparently fail to pay up accrued installments of compensation) and that Massman was deprived of an opportunity to pay the accrued, weekly payments thereafter and also of its statutory right to review or cancel the award under G. S. 1949, 44-528. The premise is based upon Mass-man’s own interpretation of evidence. Although Snyder had advised Massman its petition for a rehearing in the supreme court had been denied, it was two weeks after it received the demand that it notified its attorney Snyder. Massman, not Snyder, was responsible for the passage of time in which it might have paid the accrued compensation and avoided the statute under which the entire award became due. Massman, and not Miller, had the burden of avoiding effects following the demand and neither Miller nor his counsel was under obligation to advise Massman of the exact amount due. Massman knew that as well as Miller, and the record discloses there was never any dispute as to the amount. There is no showing that Miller’s counsel misled Massman’s counsel and Massman’s contention as to Miller’s being estopped for this reason cannot be sustained.
Massman argues that Miller is estopped because he caused execution to issue, and he directs our attention to authorities setting forth the elements of estoppel, such as Schott v. Linscott, 80 Kan. 536, 103 Pac. 997, and that before acts of one can be successfully invoked as an estoppel by another, such other must have relied upon and been prejudiced by such acts, such as Dent v. Smith, 76 Kan. 381, 92 Pac. 307, to authorities as to what constitutes weaver, such as Hunter Milling Co. v. Koch, 82 F. 2d 735, and to authorities dealing with elections of remedies, such as Ireland v. Waymire, 107 Kan. 384, 191 Pac. 304. The gist of the argument seems to be that when Miller caused the execution to issue, in effect he declared that amount to be the amount due on that date, and that by so doing he waived his right to recover in the instant suit the entire amount of the compensation, accrued and to accrue in the future; that he made an election of his remedies and is bound thereby. We think it unnecessary to treat the subjects of estoppel, waiver and election of remedies at length. We need not again recite the judgment of November 24, 1949, but that it was an outstanding judgment on the date execution was issued cannot be denied. At that date, although the preliminary demand had been made, there was no judgment that under G. S. 1949, 44-512a the entire award of compensation was due. A mere reading of the last statute discloses clearly it is not an action to recover installments of compensation accrued and unpaid, but is an action to have the entire compensation declared due and payable and to collect the same. We see no inconsistency between attempting to collect the judgment of November 24, 1949, as affirmed by this court on July 10, 1950, and as later ratified by the district court on September 28, 1950, and the attempt by the instant action to have the entire amount of compensation declared immediately due and payable. Neither are we of the opinion that an attempt to collect amounts due on an existing, outstanding and valid judgment is an election of remedy that precludes resort to the relief asked under the statute last cited. The relief sought in each is consistent, and not inconsistent, with the other.
Massman also contends that the demand for payment of compensation made by Miller dated July 11, 1950, received by Mass-man the next day, was premature. The gist of this contention seems to be that until the mandate of this court had been spread of record by order of the district court, there was no judgment that any compensation was due and unpaid. What has been previously said herein is deemed sufficient to show the contention cannot be upheld.
Massman also contends that the trial court erred in denying its motion to set aside a part of a finding of fact pertaining to the correspondence and conversations between the attorneys for the parties, as heretofore set forth, for the reason the finding was not supported by the evidence. The trial court denied this motion but did substitute the adjective “final” for the adjective “actual” and Massman contends this was error. We have examined the record and hold the finding was supported by the evidence. The change of adjectives neither added to nor detracted from the finding as made. There was no error.
A careful search of the entire record shows that Miller, to whom compensation was due from Massman, partly in accumulated unpaid installments and partly in installments to come due in the future, made proper demand for the accumulated unpaid compensation as provided by G. S. 1949, 44-512a, and that Massman failed within the requisite period of two weeks from service of the demand to make payment, thereby subjecting itself to the provision of the statute making the entire award immediately due. The statute may be rigorous, but it is possible to comply with its terms. Massman did not do so. The trial court committed no error in determining the issue and its judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action in habeas corpus in which petitioner (appellant) sought the custody of his eleven-year-old daughter.
The respondents (appellees) are uncle and aunt of the child, the aunt being a sister of the child’s deceased mother.
The appellant father will be referred to as petitioner, and appellees as respondents.
In view of our disposition of this appeal it is unnecessary to detail the allegations of the pleadings, but, stated very briefly, they show the following background of the situation:
In 1939 petitioner and his wife were the parents of three children, of the ages of six, three and one. In May of that year, in Denver, Colorado, the child in question was born of premature birth. The mother died at childbirth, and petitioner, thus left alone with the problem of rearing four young children, proposed and agreed with respondents that if they would take the last-born child into their home and rear her as one of their own he would relinquish and surrender to them all of his parental rights to the child. Respondents accepted this proposal, took the child into their home in Ellis county, Kansas, and for a period of eleven years have reared her as one of their own children. Petitioner is now a resident of California, has not remarried, and has reared his three other children during the eleven-year period. His request and demand to respondents that they now relinquish the child to him being refused, this action was commenced.
Following a full and complete hearing, which consumed four days, the lower court rendered judgment in favor of respondents and denied the writ. Petitioner s motion for a new trial being overruled, he has appealed, specifying as error the judgment rendered and the order overruling the motion for new trial.
None of the evidence, has been abstracted, but incorporated in the journal entry of judgment appears a lengthy oral statement by the trial judge when he rendered his decision. The parties refer to and consider this comment on the part of the trial court as being tantamount to “findings,” and we shall do likewise.
In this oral statement the court, after reviewing the background and history of the whole matter, commented at length concerning the parties and what appeared to be for the best interests of the child, and found “the issues generally in favor of the respondents and against the petitioner.”
For present purposes we do not consider it necessary to take up and discuss the various contentions of the parties in support of or to overthrow the judgment rendered. Over the years many cases concerning the custody of children have come before this court. Usually the situation was created on account of the divorce of the parents. Here it came about because of the death of the mother, the situation in which the father then found himself, the eleven-year interval during which the child was reared by respondents, and now the father s attempt to regain custody.
Out of those situations where the contest has been between a parent and those not having a legally paramount right to custody has grown a well-established rule, recently announced in Ramey v. Ramey, 170 Kan. 1, 223 P. 2d 695, where we quoted with approval the following from Stout v. Stout, 166 Kan. 459, 201 P. 2d 637:
“Under our recent and often repeated decisions, to which we have strictly adhered for many years, the established and inviolate rule has been and now is that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody, in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them (See Jones v. Jones, 155 Kan. 213, 219, 124 P. 2d 457; May v. May, 162 Kan. 425, 176 P. 2d 533; In re Jackson, 164 Kan. 391, 190 P. 2d 426; Bailey v. Bailey, 164 Kan. 653, 192 P. 2d 190, citing numerous other and early decisions to the same effect).” (P.463.)
No purpose would be served in detailing the lower court’s findings. It is sufficient to say that after a most careful and exacting study of them we are unable to ascertain what the court found concerning this all-important issue, namely, the fitness of petitioner to have custody of his child. Such being the case, we have no alternative than to remand the cause for further proceedings.
The cause is therefore remanded with directions to the lower court to make a definite finding as to the fitness of petitioner to have custody of the child.
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The opinion of the court was delivered by
Harvey, C. J.:
This was a workmen’s compensation case. The claimant, James K. Polston, had been employed as a carpenter for about three years by the respondent, Ready Made Homes, Inc., which was building residences in and near Pittsburg, Kansas. He was 58 years of age. On the 28th day of September, 1949, he was laying oak flooring when a nail glanced off his hammer and struck his left eye. Before the examiner of the workmen’s compensation commission the parties stipulated that the relationship of employer and workman existed at the time of the alleged accident, September 28, 1949; that the parties were governed by the Kansas workmen’s compensation act; that the claimant’s average weekly wage was $70; that respondent had actual knowledge of the accident within ten days; that written claim for compensation had been made as required by law; that the claimant met with an accidental injury which arose out of and in the course of his employment; that respondent had furnished and paid for medical service in a sum stated, and that claimant had been paid weekly compensation for 34 weeks at $20 per week. It was further stipulated that the issues are: (1) Nature and extent of claimant’s disability,'if any, and (2) the amount of compensation due, if any.
The claimant testified about the injury to his left eye and stated that he had only enough vision in the left eye to distinguish daylight from darkness. He further testified that when he was about twelve years old he got some powder in his right eye; that a tube blew out of an old muzzle loading shot gun and the powder came into his face and right eye. He testified that when he was examined for work in Tulsa, Oklahoma, in 1941 or 1942, and the examiner blocked his left eye, he could not read as well with his right eye. A year or two before the injury to his left eye he was shooting a rifle and discovered that when shooting righthanded he could not see through the sights very well, but when he put the rifle over and shot lefthanded he could see through the sights. Through the years up until the injury to his left eye he had not noticed very much the injury to his right eye. He had worked at carpenter work and had driven a truck before he was employed by respondent and had no difficulty in seeing how to do his work; that since the injury to his left eye he had been unable to see enough with his right eye to perform any work. At the hearing before the examiner for the workmen’s compensation commission counsel for claimant made it clear that he was claiming the claimant is totally and permanently disabled. The examiner thought that claim might involve the second injury fund (G. S. 1949, 44-566 to 44-572), although claimant’s attorney was not limiting his claim to that fund, but relied also on G. S. 1949, 44-510 (3) (24). In view of the claimant’s theory that he is totally and permanently disabled the examiner thought it best to contact the compensation commissioner to see if he desired a further record made, and a continuance was had for the hearing of medical evidence. The workmen’s compensation commissioner appointed Dr. Earl E. Miller, a physician of Pittsburg, Kansas, specializing in the treatment of eye, ear, nose and throat, to make an examination of the claimant. At a further hearing it was stipulated that his written report might be offered in evidence, the parties waiving an oral examination and cross examination of the doctor. The pertinent part of his report reads:
“He does not wear glasses and the vision uncorrected is 20/100 plus 3 in the right eye and less than 20/200 in the left eye, which amounts to a loss of visual efficiency of about 45% in the right eye and about 85% in the left eye. He has central immature cataracts, worse in the left eye. Glasses do not seem to improve his vision because of the cataracts. Surgery may be of help at a later date.”
The claimant had been examined on two occasions by Desmond Curran, M. D. of Kansas City, Missouri. The pertinent part of the first report reads:
“The above patient was first seen by us on November 4, 1949. He gave a history of being struck in the left eye with a nail six weeks prior to that time. The vision in his left eye had been bad since the above accident. There was considerable watering of the left eye due to a corneal scar which is linear and in the region of about ten o’clock.
“The right eye had multiple areas of cloudy cornea with some powder impregnation which was evidently due to an old powder bum of the right eye at the age of fourteen.
“A posterior capsular cataract is present in each eye and our studies with the comeal microscope are convincing enough to say that they existed prior to the above accident and this visual impairment is due to the comeal scar and also to the fact that the eye is healing and the vision is not as good as it will be when the healing is completed.”
The second report of Doctor Curran reads:
“The last examination of the above named patient was on March 29, 1950. The vision in his right eye was 20/100 and in his left eye the vision was 20/200.
“The left cataract appears to be larger than when he was examined in November 1949. The vision has decreased in the left eye.
“I believe this cataract could be removed successfully in the near future.”
The examiner for the commissioner concluded that the claimant is not totally and permanently disabled and therefore not entitled to benefits under the second injury fund. He found that the claimant was entitled to compensation for the loss of an eye for a period of 110 weeks (G. S. 1949, 44-510 (3) (15)) and made an award accordingly.
The claimant appealed to the district court, where the court, after having carefully read and considered all the evidence and record taken and the award of the commissioner, and being fully advised in the premises, found that the award of the workmen’s compensation commissioner should be modified, and specifically found that on September 28, 1949, claimant sustained an accidental injury to his left eye causing him to have a 100 per cent loss of visual acuity and to be industrially blind in that eye, which arose out of and in the course of his employment with respondent; and further found:
“. . . that prior to claimant’s said accidental injury to his left eye on September 28, 1949, claimant had suffered a previous disability of his right eye and has a loss of vision in the right eye of 63.875 per cent, which in conjunction with the injury to his left eye renders claimant unemployable and industrially blind and totally and permanently disabled.”
The court further found:
“That as a direct result of said accidental injury suffered by the claimant to his left eye on the 28th day of September, 1949, together with his said previous disability of claimant’s right eye, the claimant became totally disabled on October 8, 1949, and is totally and permanently disabled from performing manual labor and physical labor; that by reason thereof the claimant is entitled to compensation for a period of 415 weeks provided for total and permanent disability.”
The court further found the amount due at the date of hearing and ordered it to be paid in a lump sum, less the compensation previously paid. The court further found it to be an extreme case and that the claimant is in need of medical treatment and service for his injury and disability arising therefrom and is entitled to a further award of not to exceed the statutory maximum of $750 for medical care and treatment, less the sum of $71.52 previously paid. The award made was in harmony with these findings.
From these findings and award respondent and its insurance carrier have appealed and present three questions for decision: First, that there was no substantial, competent evidence to support the finding of the district court that the claimant is totally and permanently disabled. On this point claimant testified that after his injury on September 28 he returned to work October 5; that he tried to work, but would miss the nail, hit under it or over it; that he could not do any good using a saw or climbing ladders or working on a scaffold because he couldn’t see well enough; that he could not fit the studding together; that he was unable to read — the lines all ran together and it gave him a headache; that he could see a person to recognize him 20 or 30 feet away if he were not standing between him and a light; that if there was a light back of him he could not recognize him even if he was as close as seven or eight feet away; that he thought he could drive nails, but that if he did that for two or three minutes his eye got to hurting, and he said to Mr. Trout, the foreman: “Can you see my eye?” and he said: “Did you get hurt?” The witness answered, “Yes,” and Mr. Trout said, “It is watering so much I can’t see it, but you better go to the doctor.” He did go to Doctor Mehrle, who put some medicine in his eye and a bandage on it. He went back and told his foreman: “I won’t be able to work,” and he went home. That he did some work for a few days while working inside, but when he went outside he was not able to work, and finally Mr. Trout told him: “Jim, you can’t do the job, it is just wasting your time.” He testified he could drive his car in the daytime if he was careful and drove no faster than 20 or 30 miles an hour, but did not drive at night. There was much more testimony to the same effect. He went back three or four times later to try to get work and was told that he was not able to do the work. He further testified that he could walk around on a level surface, but where it was uneven he could not see the low places. He would “just kind of step down like a blind horse that way.” He further testified: “I couldn’t see to do the work, I couldn’t see enough to hold a job,” and that he did not know whether he would ever be able to go out on a job and make a hand. None of this evidence was contradicted. We think it cannot be said that the court did not have substantial, competent evidence to support its finding that he was “totally and permanently disabled from performing manual labor and physical labor.” The findings and award were made subject to the further order of the court or of the compensation commissioner.
The court took the report of Doctor Curran as to the visual acuity of each of the eyes; 20/100 of the right eye means that the claimant lost 63.875 per cent or, stated the other way, that he retained 36.125 per cent of the visual acuity of the right eye; 20/200 for the left eye means that the claimant had a loss of 100 per cent of the visual acuity of that eye. The court in finding the disability of claimant was not limited by the medical evidence. The court had authority to consider the testimony of the claimant as well as the medical evidence. (See, Bull v. Patti Const. Co., 152 Kan. 618, 106 P. 2d 690; Copenhaver v. Sykes, 160 Kan. 238, 160 P. 2d 235; Conner v. M. & M. Packing Co., 166 Kan. 98, 199 P. 2d 458, and authorities cited therein.)
Appellant’s second contention is that if the court finds there is sufficient competent evidence to sustain the trial court’s finding that claimant is totally and permanently disabled, then the compensation awarded claimant, other than for the loss of the left eye under G. S. 1949, 44-510 ( 3) (15), should be awarded against the second injury fund and not against respondent and its insurance carrier. It is clear the court based its award upon our statute [G. S. 1949, 44-510 (3) (24)], which reads:
“If a workman has suffered a previous disability and received a later injury, the effects of which together with the previous disability shall result in total permanent disability, then and in that event the compensation due said work man shall be the difference between the amount provided in the schedule of this section for his prior injury and the total sum which would be due said employee for such total disability computed as provided in section 44-511 of the General Statutes Supplement of 1945 and any amendments thereto, but in no case less than seven dollars per week nor more than twenty dollars per week.”
This statute was a part of the general revision of our workmen’s compensation law revised in 1927 (Chap. 232, Laws 1927). It has been held as applying to a situation such as we have here. (Stevens v. Kelly-Carter Coal Co., 140 Kan. 441, 37 P. 2d 48; Masoner v. Wilson & Co., 141 Kan. 882, 44 P. 2d 265). Counsel for appellant recognize that, but say that the statute was enacted and the decisions rendered prior to the adoption by the legislature of the statute pertaining to the second injury fund. That is correct. The second injury fund was first adopted by our legislature in 1945 (Chap. 221, Laws 1945), was slightly amended by Chapter 290, Laws 1947, and now appears in our General Statutes of 1949 as sections 44-566 to 44-572. The general purpose of the act is shown by its title, which reads:
“An Act to provide for the payment of compensation to a workman who has suffered a disability resulting from an injury to a specific member of the body while in the employ of a trade or business operation within the provisions of the workmen’s compensation law and having suffered a previous disability as a result of the loss of, or the loss of the use of a specific member of the body while a member of the armed forces of the United States or while engaged in industry or otherwise the effects of both disabilities thereby resulting in total permanent disability; creating a second injury fund; making an appropriation ■therefor and providing for the administration of the act.”
Section 1 of the act contains definitions and includes: “(3) ‘Member of the body’ means an eye, arm, hand, leg or foot.” The second section reads:
“When a workman has suffered a disability resulting from an injury to a specific member of the body while in the employ of a trade or business operating within the provisions of the workmen’s compensation law, and having suffered a previous permanent disability as a result of the loss of, or loss of use of, a specific member of the body while a member of the armed forces of the United States, or while engaged in industry, or otherwise, and the effects of both disabilities shall result in total permanent disability, then the total compensation due the workman shall be the amount for total permanent disability computed as provided in section 44-511 of the General Statutes Supplement of 1945 less the amount provided in the schedule set forth in section 44-510 of ■the General Statutes Supplement of 1945 or amendments thereto for his prior disability: Provided, That in no case shall the payments be less than seven dollars per week nor more than twenty dollars per week: Provided, however, That the employer by whom the workman was employed when the workman received his second disability shall be liable only for the amount of compensation due as provided in the schedule set forth in section 44-510 or amendments thereto of the General Statutes Supplement of 1945 and computed as though the workman had suffered no previous disability: And provided further, That tire remainder of the compensation due the workman under a total permanent disability award shall be paid from the second injury fund as hereinafter provided, but in no event shall the workman be entitled to receive as a result of a second injury more than the commissioner shall allow for total permanent disability less the amount provided for in the schedule set forth in said section 44-510 or amendments thereto for the first disability.”
Subsequent sections create the second injury fund and provide for its administration. They are not specially material here. The section creating the second injury fund did not specifically amend or repeal G. S. 1949, 44-510 ( 3) (24). The result is that we now have both these statutes.
Counsel for appellants do not contend that the later statute (G. S. 1949, 44-566 to 44-572), providing for the second injury, repealed the earlier one [G. S. 1949, 44-510 ( 3) (24)]. It is argued that the later statute is supplementary to and should be considered together with the earlier one. We concur in that view. They do overlap to a certain extent. The earlier statute is somewhat broader in its scope than the later one, which particularizes the situations to which it applies. The earlier statute applies “If a workman has suffered a previous disability and received a later injury, the effects of which together with the previous disability shall result in total permanent disability. . . .” The later statute pertains to a “member of the body,” and that term is defined to mean “an eye, arm, hand, leg or foot.” It does not include any “previous disability,” as the earlier statute does. The later statute applies “When a workman has suffered a disability resulting from an injury to a specific member of the body . . . and having suffered a previous permanent disability as a result of the loss of, or loss of use of, a specific member of the body . . . and the effects of both disabilities shall result in total permanent disability. . . .” It will be observed this statute deals with a loss or loss of use of the specific member of the body named in the statute. It does not deal specifically with a partial loss or loss of use of the named member of the body. In the case before us the compensation commissioner, and the district court on appeal, did not find that claimant had lost the right eye or had lost the use of it prior to September 28, 1949, but found only that claimant had sustained a partial loss of the use of the right eye, and for that reason they concluded the second injury fund was not applicable. We are unable to say that this conclusion was erroneous.
Counsel, particularly in their reply briefs, have cited several cases from other jurisdictions. We have carefully examined those and many others. The statutes in the various states differ quite a little, with the result that there are differences in the conclusions reached by the courts in the cases that have come before them. However, none of the other jurisdictions, and we have examined more than twenty of them, have two statutes that must be considered, such as we have here. For that reason we think it is neither necessary nor would it be helpful to quote the statutes of other jurisdictions and analyze the cases decided thereunder. After all, our problem is to determine and apply our own statutes.
The third point argued by appellants is that the court erred in finding this to be an extreme case in which the claimant is entitled to medical treatment to the amount of $750. The point is not well taken. Appellants at the time of the hearing in the district court had expended a total of $71.56 for medical treatment. The other part of the money will not be used unless needed. The report of each of the doctors was that the claimant had cataracts on both eyes which might be removed at a later time. Therefore, additional medical treatment will be needed for that, and perhaps for other services. At the hearing before the examiner respondent tendered a treatment for the removal of the cataract if it would be done by a named doctor in Wichita, or anyone else who would not charge more than $125. This was refused by the claimant for the time being, at least, and appellants now contend that because such a tender was made and refused they should not be . liable for any further medical treatment. The tender of treatment for removing the cataract at that time was futile for at least two reasons: The cataract was not ready to be removed, and second, the limitation of cost of removal was not justified. In the Rules and Regulations of the Compensation Commissioner of August 1, 1950, the recommended medical fee for cataract extraction is $150, but the commissioner was careful to state (on page 108) that “No hard or fast rule can be applied with respect to fees in all cases.” The cataract may have to be removed from each eye. Since there was no medical attention needed at the immediate time what will he needed to be done, and the cost of it, can well be determined in the future.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action to quiet title to real estate. Judgment was for the defendants and the plaintiff appeals.
Plaintiff, Carl H. Thom, commenced this action against his brother, Otto Henry Thom, and Ruth, his wife, by the filing of a petition, in the district court of Rarber county, wherein he claimed to be the owner of an eighty acre tract of land located in that county under and by virtue of a warranty deed from his mother, Mary Thom, dated April 25, 1950.
Ruth Thom was made a party to the action and is involved in this appeal solely because of marital relationship. For that reason no further reference will be made to her in this opinion and the contesting brothers, in the interest of brevity, will be referred to as plaintiff and defendant.
Otto Henry Thom responded to plaintiff’s petition by an answer denying the latter’s right to any relief and a cross-petition in which he alleged that .under and by virtue of a warranty deed made, executed, and delivered by his mother, Mary Thom, on the 25th day of February, 1941, he was the owner of the real estate in question, subject only to a life estate in the mother, and asked that he have judgment quieting his title therein.
Other than as heretofore stated nothing is to be gained by detailing the contents of the pleadings filed by the parties or, for the moment, reference to any specific allegations thereof. It suffices to say that after joinder of issues the all important questions presented in the court below were whether the instrument on which defendant based his title (1) was delivered by the grantor and (2) conveyed a present interest in the real estate therein described or was testamentary in character.
At the conclusion of a trial the district court decided both questions against plaintiff and rendered judgment quieting defendant’s title to the real estate except as to the life estate which it held had been acquired by plaintiff from Mrs. Thom under the deed executed by her on April 25, 1950. Thereupon, plaintiff perfected this ap peal where he now contends the trial court erred in holding there had been a delivery of defendant’s deed and that such instrument was not testamentary in character but passed a present interest in the real estate therein described.
Touching plaintiff’s first claim of error it can be said the defendant’s deed, which was admitted in evidence, shows it was filed for record on the 25th day of February, 1941, and thereafter recorded in book 55 of deeds at page 102 in the office of the Register of Deeds of Barber county. Standing alone that fact in and of itself created a presumption of delivery which could only be overcome by competent evidence (Staats v. Staats, 148 Kan. 808, 82 P. 2d 842). The trial court found evidence introduced by the plaintiff was not sufficient to overcome the presumption and further found that other evidence disclosed it was the grantor’s intention to deliver the instrument. We have examined the record and find ample evidence to sustain those conclusions. Therefore they must be upheld. The rule that factual findings of such character will not be disturbed on appellate review if the record discloses substantial competent evidence to sustain them is well established (See Goodell v. Olin, 170 Kan. 393, 227 P. 2d 126; Bradbury v. Wise, 167 Kan. 737, 208 P. 2d 209, and cases there cited).
In view of the issues involved the facts of this case are relatively unimportant and for that reason have not been labored. However, in approaching consideration of the second claim of error relied on as a ground for reversal of the judgment it should perhaps be stated the plaintiff inferentially concedes, if in fact he does not expressly admit, that if the conveyance relied on by defendant is to be construed as a deed and not testamentary in character then he is not entitled to the relief claimed in his petition and defendant is the owner of the fee title to the involved real estate subject only to rights reserved by the grantor in that instrument during her lifetime. Thus, since we have said that in the construction of deeds the intention of the grantor as gathered from an examination of the instrument in its entirety is controlling (See Epperson v. Bennett, 161 Kan. 298, 167 P. 2d 606, Bennett v. Humphreys, 159 Kan. 416, 155 P. 2d 431 and Howe v. Howe, 94 Kan. 67, 145 Pac. 873), it clearly appears our primary concern is with the contents of the instrument in question and our duty is to examine them for the purpose of ascertaining whether the trial court was correct in concluding they disclose an intent on the part of the grantor to pass a present interest in the lands therein described.
The deed on which the claim of error now under consideration must stand or fall, omitting the legal description of the land conveyed and italicizing words which were inserted and are not part of the printed form, reads:
“This Indenture, made this 25th day of February, A. D., 1941, between Mary Thom, a single woman of Barber County, in the State of Kansas, of the first part, and Otto Henry Thom of Barber County, in the State of Kansas, of the second part:
“Witnesseth: That said party of the first part, in consideration of the sum of One Dollar and love and affection . . . and No/100 Dollars, the receipt whereof is hereby acknowledged, does by these presents, GRANT, BARGAIN, SELL AND CONVEY, unto said party of the second part, his heirs and assigns, all the following described real estate, situated in the County of Barber and State of Kansas, to-wit:
[description]
“Grantor also retains the right to mortgage the above described land if necessary, so long as she shall live. The grantor herein retains all rights to the above described land until her death, after which, this deed conveys the fee title to the above named Otto Henry Thom, also the right to lease said land for oil and gas purposes, is hereby reserved by the grantor herein.
“To Have and to Hold the Same, Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, forever.
“And said Mary Thom for herself, her heirs, executors or administrators, does hereby covenant, promise and agree, to and with said party of the second part, that at the delivery of these presents she is lawfully seized, in her own right, of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above-granted and described premises, with the appurtenances; that the same is (are) free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances, of what nature or kind soever; and that she will WARRANT AND FOREVER DEFEND the same unto said party of the second part, his heirs and assigns, against said party of the first part, her heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.”
In announcing its decision the deed heretofore quoted passed a present interest in the land and in rendering judgment for the defendant as to the quiet title feature of the action the trial court in a well reasoned opinion said:
“Now that leaves, as I see it, only the remaining question as to the construction of that deed. I think that the authorities which you have cited are quite clear that if a deed conveys a present interest in land described therein, that it is then a deed and entitled to consideration as such. Whereas, if on the other hand it passes no immediate interest and is intended to take effect only at or after the death of the grantor, then it passes no immediate interest and becomes testamentary in character. That is it becomes as a will which only takes effect at the death of the testator. So I think that must be the rule that we apply in the construction of tire deed in question. Furthermore, I think that the policy or the law is to uphold a deed rather than to destroy it, or to hold it to be null and void, if it can be done consonant with the intention of the grantor, which is to be obtained from the entire instrument — from reading it from its four comers. So here what do we have? We have an instrument labeled warranty deed. It is in all respects in simple terms a warranty deed with the exception of the clause thereon immediately following the description of the land. This clause is in the granting clause or granting portion of the deed. And what does that say? Grantor retains the right to mortgage the above described land if necessary so long as she shall live. Grantor herein retains all rights to the above described land until her death, after which this deed conveys the fee title to the above named Otto Henry Thom. Also the right to lease said land for oil and gas purposes is hereby reserved by the grantor herein. Now what is the effect of that reservation made there? She first provides that she does by these presents grant, bargain, sell, and convey unto the party of the second part, his heirs, and assigns, this real estate. Standing alone that would be a perfect grant of title. But after she describes it, what does she say? She says she retains the right to mortgage the land if necessary so long as she shall live, indicating thereby that she has granted something, that she has conveyed something, but that she retains the right to mortgage if necessary. Going further, grantor herein retains all rights to the above described land until her death. This further is retaining something from what she has just previously said she was selling and conveying, but it shows an intention to retain something out of it. Now these words ‘all rights’ has bothered me for some little time in the construction of this deed and I can’t say that this deed is beyond all question one way or the other, but it is my duty to construe it as I see it from Mrs. Thom’s intention as expressed by all the words in the deed. So, she retains all rights to the above described land until her death, after which the deed conveys the fee title to the above named Otto Henry Thom. Now if you would just construe that intention in the sentence alone, I would think that you would have to say that it absolutely nullifies her previous words of grant, bargain, sell and convey. But we must construe the first clause along with the second clause and along with the third clause, or whatever else follows in the deed. So after she says that she retains all rights to the above described land, then she proceeds further to say ‘also the right to lease said land for oil and gas purposes is also reserved by the grantor herein.’ So I am compelled to think that she didn’t mean literally that she reserved all rights and nullified her previous “bargain, sell and convey,’ but that she was only making certain reservations; else if she had already reserved all rights there was no reason for her to also reserve the right for gas and oil lease purposes.
“Then she proceeds with the habendum clause in the ordinary and customary form, and with the warranty clause warranting the land to be free and clear of all encumbrances as you find in nearly every warranty deed.
“So taking the instrument as a whole, I think that we must say that she intended to pass presently some interest in this land; that she intended that Otto Henry Thom should immediately acquire some interest in the land and that she should retain these rights of mortgage and to lease for oil and gas, and that ‘all rights’ mean all rights during her lifetime. I think to construe it otherwise would be to do violence to the other parts of the deed.”
Our reports contain decisions touching every phase of the subject covered by the heretofore quoted portion of the trial court’s opinion. See, e. g., In re Estate of Kruckenberg, 171 Kan. 450, 233 P. 2d 472; Yordy v. Yordy, 169 Kan. 211, 217 P. 2d 912; Jones v. Walker, 169 Kan. 29, 216 P. 2d 822; Newell v. McMillan, 139 Kan. 94, 30 P. 2d 126; Brady v. Fuller, 78 Kan. 448, 96 Pac. 854; Nolan v. Otney, 75 Kan. 311, 89 Pac. 690; Durand v. Higgins, 67 Kan. 110, 72 Pac. 567; Powers v. Scharling, 64 Kan. 339, 67 Pac. 820; Love v. Blauw, 61 Kan. 496, 59 Pac. 1059; and other cases therein cited. To review the foregoing cases would add nothing to the body of our law for they definitely establish this court’s position on the subject of when a deed which has been delivered is to be construed as passing a present title and when it is to be construed as testamentary in character. All that need be said is that after giving them careful consideration we have been unable to find anything wrong with die trial court’s opinion or the reasons therein given for its decision on the point in question. Therefore, based on what is said and held in such decisions, we are constrained to concur in its view and hold there is nothing in the wording of the defendant’s deed warranting a conclusion that instrument was intended to be testamentary in character and that it must be construed as a deed conveying him a present interest in the land therein described.
For all practical purposes the conclusion just announced ends this lawsuit. However so that we cannot be charged with having overlooked it a final point will be given brief consideration. Plaintiff argues he is entitled to a new trial because the trial court, erred in overruling his motion to require the defendant to elect as to whether, under allegations of his cross-petition, he was relying upon being the owner of the title to the land involved or was seeking to recover for repairs and improvements placed on the premises. The point has little merit. Under the undisputed record defendant was in peaceable possession of the real estate as an occupying claimant. As such, having been sued in an action which if successful would result in evicting him from the premises, there can be no doubt that under the clear and unequivocal provisions of G. S. 1949, 60-1901, he had the right to assert title and ownership under his deed, supplemented by a contract with his mother for possession of the premises during her lifetime, and at the same time claim compensa tion for the full value of all lasting and valuable improvements made on the land in the event he was unsuccessful in establishing his claim of title.
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Per Curiam:
The plaintiff in this action recovered judgment against the defendant for the conversion of a span of mules. The plaintiff is the divorced wife of the defendant’s son. The questions raised by the assignments of error involve nothing beyond the application of familiar rules of law to common questions of practice and do not require extended discussion.
The statement of plaintiff in error to his former daughter-in-law, that “the mules are gone now where you will never get them,” taken in connection with the other evidence, tended to establish his privity with the conversion, and in view of all the evidence the plaintiff in error could not have suffered from the statement of the wife regarding the mistake in the bill of sale from her husband. The discretion of the court over the limits of cross-examination was not abused; the divorce proceedings threw much light on the situation and relations of the parties, and no objection was made to the introduction of the bill of sale for want of proof of its due execution.
The amendment to the petition cured any defect it originally presented, and, while not strictly formal in its phraseology, was sufficient to sustain the judgment.
The findings of fact were sustained by sufficient evidence, and no prejudicial error appearing on the record, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
This action was brought by Henry O. Flower to quiet his title to lots 23 and 25 on West street, Thurston Place addition to the city of Topeka. Mary Hogaboom, one of the defendants, by way of cross-petition pleaded a mortgage executed by Halleck Hill and wife on the real estate, and asked that it be declared a lien thereon and foreclosed. This answer disclosed that more than five years had elapsed from the maturity of the note and the filing of the cross-petition. To avoid the bar of the statute of limitations, it was alleged that by a stipulation in the note the Hills exempted themselves from personal liability for the debt, and the mortgagee agreed to look solely to the real estate for satisfaction; that immediately after the execution of the note and mortgage the Hills conveyed the real estate to a non-resident of the state, and that such purchaser and all subsequent owners thereof, including the plaintiff, have at all times been absent from the state. The court sustained a demurrer to this answer, to reverse which the defendant* Mary Hogaboom, prosecutes this proceeding.
It is contended by plaintiff in error that, as the Hills were not personally liable for the debt and had parted with their title to the real estate before the maturity of the note, they were neither necessary nor proper parties to the action, and therefore an allegation that they also had been continually absent from the state for more than five year3 after maturity of the note was not necessary to save the defendant’s-lien from the bar of the statute. Conceding the contention of the plaintiff in error that there was no personal liability resting upon any person to pay this debt, she then held only a lien on the real estate. The fact that the holder of the legal title was absent, from the state did. not prevent her from enforcing such lien by a proper action at any time after the maturity of the debt, nor suspend the statute of limitations. Having no personal cause of action against any of the holders of the legal title, their presence or absence from the state was immaterial so far as her foreclosure proceedings were concerned. She had her proceeding in rem to enforce her mortgage lien.
It was held by this court in Smalley v. Bowling, 64 Kan. 818, 68 Pac. 630, that the statute of limitations would run against a judgment after the expiration of six years from the issuance of the last execution, notwithstanding the judgment debtor was absent from the state during the entire period of time. The judgment creditor could have kept his judgment alive by. the issuance of execution. The statute makes ample- provision for the foreclosure of liens on real estate in the absence of the owner from the state, and when such remedies are open to a party he must invoke them or the statute will run.
Section 7680, General Statutes of 1901, reads:
“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
This court, in Beebe v. Doster, 36 Kan. 666, 14 Pac. 150, said:
“Absence from the state on the part of a tax-deed holder will not prevent § 141 of the' tax law from so operating as to bar any suit or proceeding brought against the tax-deed holder or his heirs or assigns for the recovery of the property', or to defeat or avoid the tax deed, if such suit or proceeding is not commenced within five years from the time of the recording of the tax deed.” (See, also, Campbell v. Stagg, 37 Kan. 419, 15 Pac. 531; Wilson v. Reasoner, 37 id. 663, 16 Pac. 100; Dillon v. Heller, 39 id. 599, 18 Pac. 693; West v. Cameron, 39 id. 736, 18 Pac. 894; Mawhinney v. Doane, 40 id. 676, 17 Pac. 44.)
Another contention is that in an action to quiet title to real estate the plaintiff cannot interpose the statute of limitations against a defendant mortgagee. Section 4453; General Statutes of 1901, provides that “when a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense.” This provision is broad enough to include all actions, whether legal or equitable. A right of action thus barred is dead for all purposes while the bar continues. Courts cannot revitalize it or give it force ; it is as if no such right had ever existed. It is of no importance how or by whom it is brought upon the record ; it is no more potent to defeat a recovery than it is to sustain one. It was said in Donald v. Stybr, 65 Kan. 578, 70 Pac. 650:
“In an action to quiet his title, brought by a senior mortgagee who had obtained a sheriff’s deed and possession of the premises under a foreclosure of his mortgage against the mortgagors without joining a second mortgagee as a party, the answer of the second mortgagee, claiming the right to redeem, disclosed the fact that his right to recover against the mortgagors was barred by the statute of limitations. Held, that the answer stated neither a cause of action for redemption nor a ground of defense to the plaintiff’s suit.”
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was a suit wherein taxpayers sought to enjoin the issuance of bonds by Rural High School District No. 3 and Common School District No. 63, both in Republic County, as authorized by elections held January 6, 1951, and under circumstances herein related. For convenience we shall hereafter refer to the first district as the rural high district and to the second as the common school district.
Plaintiffs’ amended petition, after setting forth formal matters, alleged that on June 10, 1949, the rural high district held an election to authorize bonds to provide funds for acquiring a site and erecting a school building, and that the proposition voted on in no respect provided for acquiring a site or using bond proceeds to construct a building for the joint use of the defendant districts; that the common school district owned a site and building in Republic, Kansas, and on June 10, 1949, held an election to authorize bonds for acquiring a site and erecting a building, and that no mention was made of a building for joint school purposes nor for change of site, and that no election for change of site had been had; that at both of the above elections a majority voted in favor of the bonds, which have been issued and sold, and the districts held the proceeds; that neither had legally selected or acquired a school site for separate or joint purposes, but each threatened to illegally use the proceeds for acquiring a site and for the construction of a joint school building and would do so unless restrained. It was further alleged that on January 6, 1951, the rural high district held an election pursuant to notices upon the proposition of issuing bonds in the amount of $25,000 “for the purpose of raising funds, to be used with funds on hand, to pay said school district’s share of the cost of erecting a building for school purposes, to be located at Republic, Kansas, within said Rural High School District No. 3, Republic County, Kansas, said building to be erected and used jointly by said Rural High School District No. 3, Republic County, Kansas, and Common School District No. 63, Republic County, Kansas”; that the funds referred to in said notice consisted of the funds raised by the bond election held June 10,1949; that the bonds voted on January 6, 1951, exceeded the statutory limitation, without legal authority so to do, and would cause illegal taxes against the property of plaintiffs. It was then alleged that the common, school district held an election on January 6, 1951, to vote on the proposition of issuing bonds in the amount of $5,000, under a notice substantially like that quoted above, and complaint similar to that last above noted was made. Then follow allegations that prior to January 6, 1951, the petitions filed with the rural high district were not signed by the requisite per cent of the qualified electors, and that the enumeration of voters was not properly made, with similar allegations with respect to the common school district. It was further alleged that the common school district had a building worth more than $400 and that the district was erecting a new building at a different location and that there had been no election to change the site; that notices of the bond election of January 6, 1951, by the rural high district were misleading and did not inform the voters the proceeds were to be used to build a joint building at a site different from the present building of the common school district and that the notices of the common school district of its election on January 6, 1951, were misleading and did not inform the electors the proceeds were to be used to build a joint building at a site a considerable distance from the present schoolhouse of the common school district.
Allegations that the defendants had illegally entered into contracts for the construction of a joint school building, in excess of the funds actually on hand, and that the two districts had already used and would continue to use illegally the proceeds of tax assessments, are noted but will not be detailed, nor will those allegations that the boards of the two districts were in conspiracy and agreement with each other in seeking without legal authority to create an illegal tax burden upon the property owners in the two districts. Reference was then made to the action instituted in 1949 which we disposed of in State, ex rel., v. Rural High School District No. 3, 169 Kan. 671, 220 P. 2d 164.
The prayer' was that defendants be enjoined from issuing the bonds voted on January 6, 1951, from using any of thé proceeds and from levying any tax for the purpose of obtaining money to do any of the things complained of in the petition and for equitable relief.
We notice the separate answers filed only to say they admit the holding of the elections, deny any irregularity or invalidity of the bonds voted, and state that when* authorized by the court they would issue, register and sell the bonds.
On February 1, 1951, the court made an order restraining issuance of the bonds voted at the January 6, 1951, elections. Thereafter at a pretrial conference, the facts were agreed on, subject to specific objections that certain of them were not material or proper for consideration on any issue invoked, and the cause was set for hearing, at which time the plaintiffs were to be permitted to offer in evidence any additional facts they might deem material. The final hearing was held, at which time some additional stipulations of fact were made and the trial court was. requested to make findings of fact and conclusions of law, and each party was given an opportunity to file a brief. Later, the trial court found the facts and concluded that the plaintiffs had failed to show any cause of action or right to relief as against the defendants, and it dissolved the restraining order and rendered judgment that the plaintiffs recover nothing. Plaintiffs’ motion for a new trial and their motion that the court set aside the conclusions of law made and make others favorable to them were denied and they perfected their appeal to this court.
The findings of fact are made up of forty-seven separate paragraphs, many of them making part thereof certain documents agreed on at the pretrial conference. As a whole they include much that is not material in view of the questions presented, and in no particular of any consequence here is there any dispute as to their correctness. The point of division among the parties is the legal consequences following. Our statement is therefore much abbreviated. On June 10, 1949, each district held an election to vote bonds for the purpose of securing a site and constructing a school building. The issue of the rural high district amounted to $148,-000 and of the common school district to $25,000. These bonds have been issued and sold. On the above date the common school district owned a site and a school building worth over $400 and which was used for school purposes until about January 1, 1949. At the annual meeting of the rural high district on April 13, 1950, two sets of minutes were made, one covering a period while the director of the district presided, the other covering the entire meeting. The first minutes disclose that the meeting was called to order by the director and proceeded until a motion was made by an elector that the rural high district unite with the common school district in the purchase of a site and the construction of a school building for the joint use of the two districts, other parts of the motion not being of immediate interest. The motion was seconded, but the director stated the motion was premature; that the matter was in litigation and until the matter was determined by the supreme court it would be improper to vote on the motion. The director then called for a reading of the minutes of the‘meeting and upon vote taken they were disapproved. The last paragraph of these minutes states the meeting became disorderly and the director called for a motion to adjourn which was adopted and the director declared the meeting adjourned. These minutes appear to be signed by the clerk. The other minutes include the same motion for the joint school building, and that a request for a vote thereon was ignored by the director who declared the motion was out of order and who ignored a request that a vote be taken on the ruling; that thereafter the minutes were read and disapproved. The director asked for a motion to adjourn which was seconded; that the director ignored a request for a standing vote and declared the meeting adjourned and left the building; that the meeting continued and the motion for a joint building was adopted 207 votes to 4 votes. These minutes were verified by affidavits of ten persons. At the annual meeting of the common school district, held on April 14, 1950, the same motion as to the district erecting a joint building was carried. Under date of July 31, 1950, the boards of the two districts entered into a contract with each other, reciting that pursuant to Chapter 353, Laws of 1949 (which is G. S. 1949, 72-317) and the vote of the respective annual meeting of each district in 1950 wherein each district voted upon the proposition of purchasing a site and constructing a building for the joint use of the districts, that the common school district would contribute $25,000 and the proceeds from the sale of its present building for the purpose of acquiring a site and for constructing a building and would pay a stated portion of the superintendent’s and the music teacher’s salary; that the rural high district would contribute $148,000 to the site and building and that each district would pay one-half'of certain stated maintenance costs. Provision was also made as to the use of portions of the contemplated building. After this contract was signed the rural high district condemned a site adjoining the city limits of Republic and later the common school district paid the rural high district one-half of the condemnation moneys. Each district used for the purpose stated, proceeds arising out of the bonds voted on June 10, 1949. On December 4, 1950, a joint meeting of the boards of the two districts was had and at that time duly sufficient petitions were presented to each board to call elections for the rural high district to vote bonds of $25,000 to be used in connection with funds on hand to provide a building for the joint use of the two districts and for the common school district to vote bonds of $5,000 for the same purposes. It was found these additional bonds would be in excess of statutory limitations and petitions were presented to the school fund commission to exceed the statutory limit, and these petitions were approved. On December 12, 1950, each district voted to hold a special bond election on January 6, 1951, and that due notice be given. There is no dispute but that the notices were given and stated the proposition in the language quoted above as to the rural high district (and the same with appropriate change of amount and name of the rural high district stated in the common school proposition) and that the ballots used so stated the question to be voted upon. It was stipulated that the “funds on hand” referred to in the stated propositions were the proceeds of the bonds voted June 10, 1949. When the above elections were held the propositions submitted received a majority vote in favor thereof. If statement of other facts found is necessary, they will be referred to later.
From the findings made the trial court concluded that the proceedings leading up to the election of January 6, 1951, were in all respects regular and that the bonds voted were valid obligations; that there was no conspiracy or unlawful act by either of the two districts; that the site for the joint building was properly selected; that the proceedings at the annual election (of the rural high district) were not so irregular as to prevent the same being a proper direction to the school boards to enter into the contract for the construction and use of a joint school building, and that such contracts were regular and in conformity to law. The trial court further concluded that the attempted adjournment of the annual meeting of the rural high district by its director was without legal effect and that the electors of the district then remaining had a legal right to and did proceed with the business of the meeting.
Before discussing appellants’ contentions the trial court erred we note that prior to the filing of the present action an action was commenced by the state to oust these districts from proceeding to erect a school building for their joint use, and briefly that in that action the trial court held that a special meeting of the rural high district on December 13, 1949, to vote on the proposal to build a building for the joint use of the two districts was not had under sufficient preliminary proceedings, and that the contract for such joint use must contain certain provisions. That judgment was affirmed by this court except with respect to the extent of the agreement for joint ownership and use of the building. See State, ex rel., v. Rural High School District No. 3, 169 Kan. 671, 220 P. 2d 164. It is not necessary we dwell at any length upon appellees’ contention that the above judgment was res judicata, or appellants’ contention that they were not parties to that action and not bound, or appellees’ response that even if not parties they were in privity and are bound, for two reasons. One is that after the judgment there involved was rendered in the trial court and before our opinion on the appeal was filed, the rural high district commenced new proceedings leading to a special meeting, in an effort to comply with the trial court’s judgment, and there is now no question but that the meeting was properly called. The sufficiency of the contract for joint use and maintenance is later treated. The other reason is that in view of other matters hereafter treated, such a discussion is unnecessary.
We note also that prior to the time the instant action was filed an action was filed by a number of taxpayers including many of those who are plaintiffs here and against these same defendants, and in which the plaintiffs sought to enjoin performance of certain acts by the defendants. In some particulars matters sought to be adjudicated there are also presented in the instant case. The trial court held that the plaintiffs had no legal authority to maintain the action. The plaintiffs’ appeal from that decision is disposed of in Haines v. Rural High School Dist. No. 3, 171 Kan. 271, 232 P. 2d 437.
We further note that appellees object to any consideration of appellants’ contention as to claimed erroneous rulings in the admission or rejection of evidence for the reason such a ground was not stated in their motion for a new trial, nor did they specify as error the ruling on such motion. The record discloses that the objection is well taken and such complaint as is made will not be noticed.
We are somewhat perplexed in disposing of this appeal because of the manner in which it is presented. Appellants, in their abstract, specify error in thirteen particulars. In their brief no reference is made to any specification of error by statement or number. The brief does contain a heading “Questions Involved” in which seven questions are listed. Under fifteen different headings, which make no reference to either the specifications of error or to the “Questions Involved,” at least in no informative way, is a somewhat repetitious argument.
Appellants direct our attention to authorities such as Schofield v. School District, 105 Kan. 343, 184 Pac. 480, 7 A. L. R. 788, wherein the rule is stated that the power of such a district to contract is only such as is conferred by express statute or by fair implication from the statute. That such is the rule is not open to debate and our disposition of this appeal is in light thereof.
Appellants seem to predicate much of their argument upon our decision in Stewart v. Gish, 109 Kan. 206, 198 Pac. 259, wherein it was held that:
“A rural high-school district and an ordinary school district, formed in part from the same territory, each having statutory authority to erect a schoolhouse for its own use, cannot without further legislation unite in the construction of a single building for their joint use.” (Syl. f 2.)
And although they recognize that there has been subsequent and further legislation, which as amended now appears as G. S. 1949, 72-317, they contend, in substance, that the latter legislation does not expressly confer any power for ownership, use, control and management of the joint building; that in any event such power to unite in a joint building is conferred only on common school districts and not on rural high school districts; that even if authorized, the contract for joint use was not adequate; that such contract was not affirmed or re-executed after the January 1951 bond election; and that no site for the new building has ever been selected by either or both of the districts, and other associated questions.
Following the filing of our opinion in Stewart v. Gish, supra, in May, 1921, nothing was done by way of further legislation until the legislature enacted Laws 1927, Ch. 278, appearing in subsequent statutes and supplements as Ch. 72, Art. 3, § 317. This act bore the title “An Act authorizing school districts and rural high-school districts to unite in the construction of school buildings” and the body of the act provided that any common school district located wholly within the boundaries of any rural high-school district might unite with the rural high-school district in the construction of a school building for their joint use “upon such terms and conditions as the respective boards of such districts may agree upon.” This act was amended by Laws 1943, Ch. 248, § 4 (G. S. 1945 Supp. 72-317) by addition of the words “provided a joint building shall have been authorized by the annual school meeting.” The statute was again amended by Laws 1949, Ch. 353, § 1 (G. S. 1949, 72-317) so that the language last quoted was changed to read: “provided, the joint building shall have been authorized by a majority vote of the electors of each of such districts voting at either an annual or special school meeting.” All of the matters here involved occurred subsequently to the date of the last amendment.
Appellants argue that the legislation, in order to be valid, must expressly confer on the districts the power to contract, must adequately provide for the selection of a site, for joint use, control, care, preservation, improvement and management of the building, for the termination of such arrangement, and for the raising of funds therefor. The argument seems to be that the above statute does not meet the requirement of House Bill No. 370 passed by the 1951 legislature. The last mentioned act pertains to action by a county and city for joint construction of certain buildings, and does not include all things appellants say are essential to validity. The last mentioned act has nothing to do with the act under consideration, sets no standards presently applicable and may be ignored for present purposes. Nor can we give any countenance to a contention the act here under consideration may authorize a common school district to unite with a rural high school district, but that it does not confer any power on a rural high school district to unite with a common school district. Not only does the title of the act negative any such conclusion, but the body of the act and the language used precludes any such construction. Nor do we think the act is invalid because it does not set forth in greater detail the terms and conditions upon which the districts must agree, nor that to be valid there must be provision for termination. The legislature was aware that situations would vary dependent upon the extent of overlapping of territory, assessed value, size of each district, number of students attending each school, prospect of change in situation in the future and knew that an affirmative vote of a majority of the electors in each district would not be had unless the electors of the district wanted one or more buildings for the joint use of the two districts. In our opinion the statute is not to be stricken down for the reasons asserted by the appellants. And an examination of the contract, as prepared and executed between the two respective boards, discloses nothing that supports appellants’ charge that it is inadequate, and they point out no defects or provisions which they contend make it so. As to the contention that the contract was not reaffirmed or re-executed after the 1951 bond elections, it is a sufficient answer that there is no statutory requirement to that effect. Actually the proposition submitted for vote at those elections, while not showing details of the contract, did challenge every elector’s attention that an agreement had been made and inquiry of the clerk of either board would have disclosed the exact contract.
Appellants direct attention to the fact we have a statute (G. S. 1949, 72-501) that the site of a common school shall not be changed until the question has been submitted to the qualified electors at a meeting called for that purpose and a majority of those voting shall have declared in favor thereof, and another statute (G. S. 1949, 72-3502 and 3507) for an election to vote on establishing a rural high school site, and it is said there was no compliance with either of these statutes. The contention is not good. While the statutes mentioned are to be respected fully where applicable, they do not have application here. These districts were proceeding under another statute, G. S. 1949, 72-317, which contains no requirement as to a vote on the proposed site. By its very terms a change of site of one schoolhouse would be compelled if there were an affirmative vote, and a change of site of both schoolhouses if the new building was to be located on a third site. The two school boards agreed on a joint building, the two districts voted to erect a joint building, the two school boards agreed on the site and the bond election of January, 1951, fixed the site at Republic. The statutory requirement was met.
Appellants also contend that the proposition submitted to the electors in each district must have been clearly stated, and that is correct, but they further contend that two propositions were submitted at each election: (1) Issuance of bonds and (2) location of site. The contention cannot be sustained. As stated above, the statute applicable does not require a vote on the site. If it did the fact remains that the election notice and ballots used in connection with the bonds under attack, stated the joint building was to be located at Republic, Kansas. And that such a site had been selected and acquired and the joint building is now in the course of construction is admitted. If the boards of the two districts are exceeding their powers in expending proceeds of bonds voted in June 1949 and January 1951, the state might complain but that plaintiffs may do so has been determined otherwise. See Haines v. Rural High School Dist. No. 3, supra.
In what has been said above we have disposed of each contention of which the appellants are in a position to complain. We note however that a contention is made that the contract for the construction of the joint school building is in excess of the power of the two school boards in that in addition to construction included in the base bid, the boards had the privilege or option of having further work done. After the January 6,1951, bond elections to raise additional funds, the board exercised these privileges and options. The gist of this contention is that the school boards are abusing or exceeding their power. Plaintiffs are not entitled to maintain an action on account thereof. See Haines v. Rural High School Dist. No. 3, supra.
A consideration of the record discloses no error of which the appellants may complain and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is a companion appeal to Kitchener v. Williams, 171 Kan. 540, 236 P. 2d 64. They were not consolidated but were argued together.
The petition referred to and described the same automatic hot water heater and the same explosion. The difference in the two cases is that in the former, Frederick T. Kitchener was injured, while in this one Frederick David Kitchener, the two-year-old son of the Kitcheners, was killed. The petition contained the necessary allegations and the action is brought by the parents pursuant to G. S. 1947 Supp. 60-3203.
The defendant demurred to the petition on the ground it showed on its face that the cause of action was barred by G. S. 1935, 60-306, third subdivision, and 60-307. This demurrer was sustained and the plaintiffs have appealed.
The allegations as to negligence and as to dates are identical with those of the petition in the former appeal.
The section, pursúant to which this action was brought, is G. S. 1947 Supp., 60-3203. It provides, in part, as follows:
“When the death of one is caused by the wrongful act or omission of another the personal representative of the former may maintain an action therefor against the latter or his personal representative if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. In any such action, the court or jury may award such damages as may seem fair and just under all the facts and circumstances, but the damages cannot exceed fifteen thousand dollars and must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”
This action was brought in time following Kitchener v. Williams, 171 Kan. 540, 236 P. 2d 64.
The judgment of the trial court is reversed with directions to overrule defendant’s demurrer and proceed with the trial of the action.
Harvey, C. J., Thiele and Parker, JJ, dissent. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from orders of the district court sustaining separate demurrers of defendants, Phoenix Mutual Life In surance Company and M. R. Smith, to an amended petition and a motion to vacate a restraining order in an action instituted by legally appointed guardians of an incompetent person to vacate a mortgage foreclosure judgment and nullify the force, effect, and results of subsequent incidental proceedings.
Sometime prior to the year 1948 Jackson K. Hurd acquired and became the owner and record title holder of certain real estate in Johnson county, consisting of a residence and three acres of land, subject to a first mortgage executed by his immediate grantor to the defendant Insurance Company, which property he occupied as his home on all dates here in question.
On February 9, 1948, an action was instituted by the Insurance Company against Hurd, in the district court of Johnson county, to foreclose this mortgage, then in default; summons was issued for service on Hurd which, according to the return of the Sheriff, showed personal service on the same date the action was commenced; thereafter and on March 15, 1948, no answer having been filed, the court granted judgment in rem foreclosing the mortgage and ordering the property sold, subject to an eighteen months redemption period, to satisfy the indebtedness secured by the mortgage, amounting to $7,971.10 plus interest and costs; subsequently on June 21,1948, pursuant to an order of sale that was regular on its face, the property was sold by the sheriff of Johnson county to defendant Smith for $10,000, he being the highest bidder therefor. On June 29, 1948, this sale was confirmed. December 21, 1949, the period fixed for redemption having expired without payment of the amount found to be due under terms of the judgment, a Writ of Assistance was issued directing the sheriff of Johnson county to place Smith in possession; this writ was not executed and thereafter an alias Writ of Assistance was issued to the same officer which was still in his hands unexecuted on the date of the filing of the instant action.
On February 17, 1950, Hurd was adjudicated an incompetent in the probate court of Johnson county and plaintiffs, Murray H. Hodges and John Anderson, Jr., were appointed coguardians of his estate; thereafter on April 5, 1950, plaintiffs who, in their capacity as coguardians, had caused this action to be commenced by the filing of a petition and service of summons upon the defendants heretofore named, as well as certain public officials not here involved, filed their amended petition wherein they prayed for the relief heretofore indicated and for certain other orders designed to stay further action on the part of the defendants which might affect the status of the title to the real estate in question.
On February 20, 1950, the district court of the county in which this action had been filed restrained the defendant sheriff from executing the alias Writ of Assistance, the defendant register of deeds from entering of record transfer of title to the realty, the defendant Smith from attempting to convey such realty and ordered that all proceedings in the foreclosure action be stayed pending its further orders.
Following action by the trial court as above related the defendant Insurance Company demurred to plaintiff’s amended pleading for the reason it failed to state a cause of action and the defendant Smith demurred thereto on grounds (1) that such pleading failed to state a cause of action and (2) that the court was without jurisdiction to grant plaintiffs’ the relief prayed for. Such defendant also filed a motion to vacate the restraining order to which we have heretofore referred to. In due time these demurrers and the motion to vacate the restraining order were sustained. Thereupon plaintiffs perfected this appeal and now under proper specifications of error challenge the propriety of the trial court’s action.
At the time the motion and demurrers just mentioned were filed and passed upon the amended petition in addition to disclosing the factual situation, heretofore depicted, contained averments obviously intended to permit appellants to rely upon fraud, unavoidable casualty or misfortune, and erroneous proceedings against a person of unsound mind, listed as 'grounds for the vacation of a judgment in a proceeding instituted for that purpose under the provisions of G. S. 1949, 60-3007. It also contained averments designed to warrant the granting of equitable relief with respect to the extension of redemptive rights of the alleged incompetent in the event it should be held its allegations were insufficient to warrant the granting of relief in a proceeding authorized by the foregoing section of the statute. All of the foregoing allegations and averments, we pause to point out, were commingled and, set forth in a single cause of action.
Allegations pertaining to fraud and unavoidable casualty or misfortune are not seriously relied on by appellants as sufficient to compel the vacation of a judgment in a proceeding instituted under the provisions of 60-3007, supra. It should perhaps be stated that if they were we would be constrained to hold to the contrary. Hence such allegations need not be detailed. From our examination of the amended petition we are convinced this action was instituted upon the distinct and definite theory that appellants were entitled to vacate the foreclosure judgment under express statutory authority (60-3007, supra). Based upon the record we are also certain the trial court so construed the amended petition and that its rulings with respect thereto were based upon that premise. In the face of such a situation, particularly in view of what has been said and held by this court, in connection with its application of the doctrine pertaining to confusion of theories in pleading (See e. g., Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619; Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965; Lofland v. Croman, 152 Kan. 312, 103 P. 2d 772; Dellinger v. Harper County Social Welfare Board, 155 Kan. 207, 210, 124 P. 2d 513, and cases there cited), we seriously doubt that appellants can now contend, as they attempt to do, that their pleading is to be construed as stating a cause of action in equity for the extension of redemption rights in the mortgage foreclosure action. Moreover, as will be presently disclosed, construction of the pleading in that regard is not required in order to dispose of the rights of the parties on appeal. Therefore, we need not hereinafter labor allegations of the amended petition with respect to such matters, or pass upon contentions advanced in connection therewith, and shall refrain from doing so.
Thus it appears the all decisive issue on appellate review is whether well pleaded allegations of the amended petition, which for purposes of the demurrers must be accepted as true and given the benefit of all reasonable inferences, state a cause of action under the provisions of G. S. 1949, 60-3007(Fifth), et seq., providing that the district court shall have power to vacate or modify its judgments, at or after the term at which such judgment was made because of erroneous proceedings against a person of unsound mind, where the condition of such person does not appear in the record, nor the error in the proceedings.
Summarized, allegations of the amended petition, respecting whether the foreclosure proceedings against Hurd were erroneous, are as follows:
That at all times, since more than a year prior to the filing of the foreclosure action, Jackson Hurd was an incompetent person, incapable of managing his estate or affairs; that a default judgment was entered against him, although he never appeared in the action to plead or malee a defense and that no guardian, natural or legal, was served with process in such action, nor was a guardian ad litem appointed for him, and no person, neither attorney, guardian, nor guardian ad litem, was in any,way served with process, nor appeared in said action at any time.
Other allegations of the pleading, not heretofore mentioned but nevertheless in question and important because of the provisions of G. S. 1949, 60-3013, providing that a judgment shall not be vacated on petition until it is adjudged there is a valid defense to the action on which the judgment is rendered, read as follows:
“Petitioners show to the Court that on behalf of the estate of Jackson K. Hurd they will abide by the orders of the Court regarding the payment to all parties and creditors of the estate of said Jackson K. Hurd in the above-entitled cause by payment of what is properly due, and any proper interest thereon should the Court so order.”
Before turning to contentions advanced by the parties in support of their respective positions it may be well to note certain matters which will not only clarify but simplify the appellate issues involved. (1) The record discloses the restraining order in question was vacated by the trial court for the reason it was sustaining the demurrers to the petition. (2) An examination of the terms of this restraining order, when considered in connection with all the facts and circumstances disclosed by the record, leads to the conclusion that it was tantamount to a temporary injunction and therefore, under our decisions (Allen v. Glitten, 156 Kan. 550, 134 P. 2d 631; Hayward v. State Corporation Comm., 151 Kan. 1008, 101 P. 2d 1041; Harwi v. Harwi, 143 Kan. 710, 56 P. 2d 449), the trial court’s ruling with respect thereto constituted an appealable order. (3) It is conceded the instant action was instituted within the time limit fixed by G. S. 1949, 60-3008, for the commencement of a proceeding under the provisions of G. S. 1949, 60-3007(Fifth).
Appellants’ first contention is that a mortgage foreclosure judgment against an incompetent defendant is void under G. S. 1949, 60-408, when no legal guardian appeared, no guardian ad litem was appointed to defend, and judgment was rendered against the incompetent by default.
Pertinent portions of the section of the statute (60-408, supra) relied upon as compelling this conclusion read:
“In any proper case service may be made on minors, insane and other incompetent persons by a summons personally served or by publication notice as provided in this code, the same as upon other persons defendants in action. If there be a natural or legally appointed guardian for such minor, insane or incompetent person, service shall also be made in the same manner upon such guardian. If there be no legally appointed guardian for such minor, insane or incompetent person, of if such guardian fail to appear and answer in the action within the time fixed by the summons or publication notice, the court shall appoint a guardian ad litem for such minor, insane or incompetent person and such guardian ad litem shall file proper pleadings in such cause, which shall include a general denial of the plaintiff’s petition, as shall put the plaintiff to proof of his cause of action. . . .”
In approaching consideration of the contentions advanced by appellants on this point it must be kept in mind they are to be disposed of upon the undisputed record facts. These, in addition to those assumed in their contention as stated, are that the ward (Hurd) was not adjudged incompetent until February 17, 1950, more than two years after the foreclosure action was commenced, and that judgment was not rendered against him in that action until after he had been personally served with summons and was in default of answer.
At the outset it should be said, although we are not averse to reviewing and will dispose of claims advanced by appellants to the contrary, that we are convinced this court has long since held that a judgment such as is here involved is voidable, not void.
In Sterling v. Goulden, 136 Kan. 18, 12 P. 2d 812, decided long after the statute in question was enacted, we held:
“A judgment against a person who is later adjudged to be incompetent does not on that account become void, dormant or invalid, notwithstanding the finding of incompetency is that it had existed since a time prior to the rendition of the judgment.” (Syl. j[ 1.)
And at page 19 of the opinion said:
“. . . A judgment rendered against a person afterwards adjudged to be insane is not void unless there should be a statute so providing.”
Ingenious counsel for appellants seek to avoid the force and effect of the foregoing decision in several ways. First they suggest the court rendering the foreclosure judgment was without jurisdiction because there was no valid service upon the incompetent. It is true, as they point out, that under our decisions a judgment against an adjudicated incompetent (See Poorman v. Carlton, 122 Kan. 762, 253 Pac. 424) without service on his legally appointed guardian, and for that matter a judgment against an infant (See Pierson v. Brenneman, 171 Kan. 11, 229 P. 2d 1019), without service upon his natural or legally appointed guardian, is void. However, that is not this case. It is conceded Hurd was an adult and had no guardian of any type or character. In that situation, under the first sentence of the section of the statute in question, jurisdiction was acquired over him for all purposes of the foreclosure action when he was personally served with summons. Next it is argued the provisions of 60-408, supra, requiring the appointment of a guardian ad litem, where an incompetent has no legally appointed guardian or such guardian fails to appear and answer within the time fixed by the summons and providing no default judgment shall be rendered against an incompetent person are jurisdictional and that failure of the trial court to appoint a guardian ad litem for Hurd in the foreclosure action makes the jugment rendered therein void. The answer to this contention is also to be found in our decisions. In Walkenhorst v. Lewis, 24 Kan. 420, we held:
“A judgment rendered against a minor, without the appointment of a guardian ad litem, may be voidable, but is not void. Such appointment can only be made after jurisdiction has been acquired, and then the failure to appoint does not oust the jurisdiction, but is simply an error to be corrected by proceedings in error.” (Syl. ¶ 4.)
In leaving the point last considered it should perhaps be stated the rule announced in the decision from which we have just quoted, which we pause to note applies to incompetent defendants as well as minors, is still the law of this state notwithstanding there have been some changes in the statute then in force and effect with respect to service of process upon such defendants. At page 773 of the opinion in John Hancock Mut. Life Ins. Co. v. Vandeventer, 141 Kan. 767, 44 P. 2d 251, we cited and approved such decision, and said “This court has held that a failure to name a guardian ad litem under this statute (60-408) for minors who were parties to an action would render the judgment voidable and not void. . . .”
Failing to find anything in the provisions of 60-408, supra, or in our decisions, warranting a conclusion the judgment rendered in the foreclosure action was void we turn to appellants’ next contention. Generally stated it is that the amended petition contains allegations sufficient to withstand demurrers based on grounds the facts therein pleaded are insufficient to state a cause of action under the provisions of G. S. 1949, 60-3007 (Fifth) et seq. In giving consideration to this contention little attention need be given to certain matters which, while they affect its decision and hence must be mentioned, are not in serious conflict. All parties concede the Fifth subdivision of the section of the statute last above mentioned provides for the vacation of a judgment at or after the term when made because of erroneous proceedings against a person of unsound mind where the condition of such person does not appear in the record nor the error in the proceeding. Appellees inferentiafly admit, and it should be here stated that even if they had failed to do so we would hold, that under existing provisions of our statute (60-408, supra) failure to appoint a guardian ad litem for an incompetent as required by its terms or the taking of a default judgment against such an incompetent irrespective of adjudication of incompetency constitute erroneous proceedings and come within the scope of the provisions of 60-3007, supra.
The real controversy between the parties on this point hinges upon the construction they place upon two other sections of the statute respecting what is required in order to succeed in a proceeding under and by virtue of the provisions of 60-3007, supra.
G. S. 1949, 60-3011, provides the proceedings to vacate or modify the judgment mentioned in subsection 5 of 60-3007, supra, shall be by petition verified by affidavit, setting forth the judgment, the grounds to vacate it, and the defense to the action, if the party applying is the defendant.
G. S. 1949, 60-3013, provides that a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action on which the judgment is rendered.
The appellants concede that if, as we have held, the judgment rendered in the foreclosure action was merely voidable they are required to plead a valid defense to such action in order to state a cause of action in the instant proceeding. The gist of their claim is that their amended petition which alleges judgment was taken against their ward by default and without the appointment of a guardian ad litem and in addition contains the following allegation,
“Petitioners show to the Court that on behalf of the estate of Jackson K. Hurd they will abide by tire orders of the Court regarding the payment to all parties and creditors of the estate of said Jackson K. Hurd in the above-entitled cause by payment of what is properly due, and any proper interest thereon should the Court so order.”,
states a valid defense to the foreclosure action and therefore suffices to withstand the attack made against it by the demurrers. On the other hand the burden of appellees’ contention is that such allegations state no defense whatsoever and they make no contention that otherwise allegations of the petition are insufficient.
The first argument advanced by appellants in support of the contention now being considered is that incompetency of their ward prior to the date of the filing of the foreclosure action, which must be conceded for purposes of the rulings on the demurrers, in and of itself is to be regarded as a valid defense to the action. No decisions are cited to sustain this argument and its fallacy appears from the sections of the statute to which we have heretofore referred. If the legislature had intended incompetency, standing alone to constitute a defense, it could very easily have said so. Instead, not once but twice, (See 60-3011 and 60-3013, supra) it provided that a judgment against an incompetent should not be vacated unless and until it is made to appear there is a valid defense to the action in which the judgment was rendered. Our view is that to sustain appellants’ position on this particular point would require us to read something into the statute that is not there.
Obviously anticipating the conclusion just announced appellants next insist that even if incompetency alone is not to be regarded as a valid defense under the statute the amended petition in the instant case complies with its terms because it charges the foreclosure judgment against their ward was taken by default and without the appointment of a guardian ad litem and in addition contains the allegations heretofore last quoted offering in substance to redeem and tendering whatever sum the court finds necessary to make all parties to the action whole, including the purchaser at the foreclosure sale.
The view of this court regarding the purpose of 60-3013, supra, is well settled. In Burris v. Reinhardt, 120 Kan. 32, 242 Pac. 143, after quoting identical language then appearing in R. S. 1923, 60-3013, we said:
“. . . The language quoted manifestly is adapted to cases where a party seeks to have a judgment against him vacated, and its purpose is to avoid the useless setting aside of a judgment where such course could accomplish nothing more than the opportunity for the rendition of another of like effect. . . .” (p. 34.)
It must be conceded that after commencement of the foreclosure action, regardless of his mental status, Hurd could have paid into court the amount due under the terms of the mortgage which was being foreclosed to that action and thus defeated the decree of foreclosure. If he had the funds to pay off the mortgage, and if, as it appears from the amended petition, he would have been disposed to do so, he cannot be held responsible for failure to take action of that character because, as clearly appears from allegations of the amended petition, he was incompetent at that time.
The instant pleading was unmotioned and under the established rule well pleaded allegations thereof are to be liberally construed. Given the benefit of the inferences to which such allegations are entitled we think that the paragraph of the amended petition last quoted, when considered in connection with the other allegations of that pleading, is to be construed as containing averments to the effect Hurd, an incompetent, possessed means with which to pay off the mortgage and would have tendered the amount due under its terms prior to the rendition of the foreclosure decree and thus defeated the cause of action for foreclosure of the mortgage if he had not been mentally incapacitated or that a guardian ad litem would have taken that action in his behalf if one had been appointed for him as required by statute (60-408, supra). When so construed we are constrained to hold the amended petition sets forth a valid defense within the meaning of that term as used in the provisions of sections 60-3011 and 60-3013, supra. This conclusion, we believe, finds ample support in our decisions.
In Fidelity State Bank v. Kirk, 139 Kan. 491, 32 P. 2d 239, a minor through her father and next friend filed a petition to vacate a mortgage decree. She asserted several defects inhering in the decree, including one to the effect she was a minor and no guardian ad litem had been appointed for her at the time of its rendition and alleged she had money and means to redeem the property. In that •case, as in the case at bar, it was claimed the petition to vacate the judgment failed to state a defense to the action. At page 495 of the opinion we rejected that contention and said:
“Appellants urge the point that the petition and motion to vacate and set aside the judgment was insufficient in that it did not state any defense to plaintiff’s action. We think it did. It revealed her interest in the property, and the interest of tire relatives who were also minors, and raised the vital point that none of them had been represented by guardians ad litem. She also alleged the fact that the trial court had been flagrantly imposed upon, to her detriment and that of her minor codefendants, when the judgment roll had been made to recite that the property had been abandoned. This minor also had such an interest in the property as entitled her to defend against plaintiff’s action to subject her deceased grandparents to a personal judgment — not that such a judgment would have any validity, but because of the possibility that it would cloud their estates and in turn affect herself as one of their heirs. She also had an interest in the sort of judgment to be rendered in the action because of her right to redeem the property from a valid and regular foreclosure sale; and it was alleged and not controverted that she had the funds to redeem the property and was disposed to do so; and as heir and intending redemptioner she was entitled to defend against a foreclosure proceeding where the rights of her codefendants, who were minors like herself, were being ignored and sacrificed — with the consequent hazard of future litigation oyer their respective interests if and when she should exercise her right to redeem.” (p. 495.)
Nothing would be added to the body of our law and hence nothing would be gained by attempting to distinguish the many cases cited by appellees in support of their position the allegations of the amended petition failed to state a valid defense to the foreclosure action. It suffices to say that when examined it appears such decisions do not deal with situations of the kind here involved and for that reason are not to be regarded as contrary to our conclusion the allegations and averments of the instant pleading state a “legal defense” to the action in which the foreclosure judgment was rendered, within the meaning of such term as used in sections 60-3011 and 60-3013 of G. S. 1949.
The result is the trial court erred in sustaining appellees’ separate demurrers and, since its vacation of the restraining order was based upon the ground the demurrers to the petition should be sustained, erred in vacating that order. Its judgment is therefore reversed with directions to set aside the orders to which reference has just been mentioned. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action to enjoin the defendants from permitting the use of or making available to any organization or group of persons the athletic field of the school district which is not directly or entirely connected with the athletic program of the grade and high school maintained by the defendant school district, or the use thereof in any manner that will deny plaintiffs the reasonable enjoyment and occupation of their property. The appeal is from an order of the court overruling defendants’ motion to set aside the temporary injunction. The facts disclosed by the record may be stated in a general way as follows: The city of Whitewater is a city of the third class (population 515 in March, 1949). School District No. 95 is a common school district, the territory of which includes the city of Whitewater and adjoining land. It maintains a grade school and a high school in separate buildings. In April, 1924, the School District acquired the title to the west half of Block 1 in a described addition to the city to use as an athletic field for its school activities. Several years prior to 1948 the athletic field was used for playing soft ball games at night and lights were installed. The home plate was located near the southwest corner of the field. By the spring of 1948 quite a little enthusiasm had grown up for the playing of soft ball and as many as four teams were interested in playing. The field as it existed was not regarded by the players as a very good place to play and they talked with the school board about it, with the result that the higher ground at the north end of the field was cut down about eighteen inches and the dirt moved south to the lower part of the field; the area for the diamond was leveled; the home plate was changed to the northwest corner of the field, and a back stop about twenty feet high was erected twenty feet south of the north line of the field and twenty feet north of the home plate, with an awning ten feet high running out toward first and third bases. Flood lights were installed on the west side of the field directed east and on the north end of the field directed south, and a public address system, with a loud speaker, was installed, over which the progress of the games was announced. All of this was done without expense to the school district.
The plaintiffs, four sisters, own the old home residence situated north across a street sixty feet wide, which has no name and the .used portion being only the width for an automobile track. The house is á large two-story building with ten rooms, and it is 114K feet to the backstop from the south side of the house. Upstairs there are four bedrooms with south exposures and on the first floor the kitchen and dining room are on the south side of the house. A grass yard from the south of the house to the used portion of the street was used by them of an evening in the summertime as a sitting place and where their friends called to visit. One of the plaintiffs has taught school in Arkansas City for thirty years and lives in Whitewater in the summertime. Another has been on the staff of the Central High School in Tulsa for twenty-five years and always lives in Whitewater for one or two months in the summer. The other plaintiffs live in the home and one of them has worked in the bank in Whitewater for twenty-five years. The other has served on the library board, as chairman of the township chapter of the American Red Cross, and is interested in church work.
In their petition, in addition to formal matters, plaintiffs stated the facts constituting their cause of action with some repetition and in more detail than is stated here, but in substance as follows: That on some date unknown to them the defendant school district, through its officers or board, “contrary to law,” permitted a group of persons to use its athletic field during the summer or school vacation months, the exact nature of the agreement or permission being unknown to plaintiffs but being well known to the officers of the defendant school district; that the group of persons and its use of the athletic field is not connected with or any part of the athletic program of the grade or high school maintained by defendant, “nor a public use in any manner,” but such use is a personal use to such group of persons.
That the groups of persons, at divers and several times weekly during the summer or school vacation months, conduct baseball games or exhibitions on the athletic field which attract crowds of considerable size; that they have located home base near the northwest corner of the field; have erected and maintain flood lights sufficient to illuminate the major part of the athletic field and plaintiffs’ adjacent property; have erected and maintain a public address system sufficiently powerful to be heard a considerable distance; have failed to provide sufficient parking space for vehicles of those who attend the games, and have worked the surface of the athletic field so that the soil is loose, porous and dusty, so that the prevailing southerly winds carry clouds of dust upon and over plaintiffs’ property; that the address system is of sufficient strength to cause plaintiffs considerable annoyance, to break their rest, interfere with their sleep, and to disturb the reasonable use and enjoyment of their property while it is operated; that the lights are maintained in a way to illuminate their property to the extent that they are unable to sleep or rest or reasonably to enjoy the use and occupancy of their property while the baseball games are being conducted; that vehicles are parked about plaintiffs’ property in such a manner as to deny plaintiffs reasonable access to or egress from their property; that persons attending the games have trespassed upon plaintiffs’ property, have parked vehicles thereon, and that men and women have indiscriminately trespassed upon plaintiffs’ property and have used the same in lieu of adequate toilet and sanitary facilities; that because of the working of the athletic field dirt and dust therefrom are constantly being carried upon plaintiffs’ property in such a manner as to deny plaintiffs the beneficial use of the property.
That for the reasons above stated plaintiffs have been prevented from the reasonable and necessary use. and enjoyment of their property, have suffered damages to their property and the value thereof, for which they have no complete remedy at law, and that they will continue to be so damaged as long as the athletic field is so used.
The prayer of the petition was that the defendant school district and its officers be enjoined from permitting the use of the athletic field to any organization or group of persons which is not directly and entirely connected with the athletic program of the grade and high schools maintained by the defendant, or the use thereof in any manner that will deny plaintiffs the reasonable use, enjoyment and occupancy of their property; that a temporary injunction be issued immediately and a permanent injunction issued upon a full and proper hearing of plaintiffs’ petition on its merits, and that plaintiffs recover their costs and have such further relief as the court may deem just and equitable.
This petition was duly verified and was presented to the court ex parte on May 26, 1950. Upon the consideration of the petition, “and after hearing the evidence in support thereof,” of which no record was taken, the court found the temporary injunction ihould be issued and would be effective on the filing of a bond by plaintiffs as required by law in the sum of $1,000. Upon the filing of such bond the court ordered, adjudged and decreed that the defendant school district and its officers “be and it and they are hereby enjoined from permitting the use of the athletic field owned by” defendants . . . “to any group or organization which conducts or proposes to conduct any activity whatsoever in connection with baseball games or exhibitions or to any other group or organization using or proposing to use said athletic field for any other purpose”; and further ordered, adjudged and decreed that the defendant school district and the officers thereof be and it and they are hereby ordered to deny the use of “said athletic field to any group or organization who use or propose to use said athletic field as above set forth.”
On June 2,1950, defendants filed a motion to vacate and set aside the temporary injunction for the reason that it was granted without notice and was granted improvidently, erroneously and without sufficient cause; that it does not appear in the petition that plaintiffs are entitled to the relief demanded; that the relief demanded does not consist in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the plaintiffs; that defendants are not doing or threatening or about to do, or procuring or suffering to be done, any act in violation of plaintiffs’ rights respecting the subject of the action, or tending to render any judgment which may be rendered ineffectual, and that the temporary injunction in terms enjoined the use of the athletic field at any time for any purpose or under any circumstance and is an unwarranted and an unjustified interference with the proper and lawful activities of the defendant school district and with the control of its property by its duly elected school board.
Defendants’ motion to vacate the temporary restraining order came on for hearing on June 12 and continued through the 15th. Defendants called a number of witnesses in support of the rr otion and plaintiffs and other witnesses testified on their behalf. Plaintiffs requested the court to make findings of fact and conclusions of law, whereupon the court took the matter under advisement until June 23, at which time it filed findings of fact which may be summarized as follows:
The findings stated the location of the property of the respective parties, found plaintiffs had owned their property a long time before defendants had acquired the athletic field in April, 1924, and found the tract was acquired by the school district to be used as an athletic field for school activities; that at some date not shown the athletic field had been used for the playing of ball games at night, and when first used for that purpose the home plate was located at the southwest corner of the field and lights were installed to permit it to be used at night, and that it was so used until about the year 1948, when the home plate was moved to the northwest corner of the tract and the land was graded so that all grass and turf was removed from a portion of it, and during the summer months of 1948, 1949 and beginning in 1950 softball games were played on the field as laid out in 1948; that in the playing of the games flood lights had been installed, a loud speaker was used, and during the games balls were frequently knocked upon the premises of plaintiffs and players and others interested in the games entered upon die premises for the purpose of recovering the balls; that the games attracted large crowds and cars were parked indiscriminately in and about the playing field and elsewhere in the vicinity; that the home of plaintiffs is located 114/1 feet north of the backstop on the playing field, and between the playing field and the property of plaintiffs is a 60 foot street; that prior to the games, and often after a rain, the playing field was dragged and a large amount of dust accumulated, which was blown from the field upon the premises of plaintiffs so that it was necessary to keep the windows on the south side of the home closed to keep the dust from accumulating in the house; that the bedrooms of plaintiffs are located on the south side of the house; that during the games patrons attending them often trespassed upon the property of the plaintiffs in using their toilet facilities; that the playing of softball games generally began early in the month of May of each year and continued until September; that the number of games varied from one to four a week; that the loud speaker could easily be heard for six or eight blocks and was practically in continuous operation during the playing of the games; that the playing of the games at night on the athletic field, installation of lights, the grading of the ground, the construction of the backstop, and other improvements made upon the athletic field was done with the sanction and approval of defendant members of the school board, although no record was made of any meeting of the board where that was authorized. The removal of the home plate from the southwest corner to the northwest corner of the field was discussed at an informal meeting of the board, of which no record was made, but at which one of the members made oral objection; that plaintiffs had protested both orally and in writing to the members of the school board against the use of the field for playing softball games at night; that when the ball games are played the flood lights are turned on and they illuminate the property of plaintiffs, shining into the bedroom windows and illuminating the grounds in general to the south of the home. The court made conclusions of law as follows:
“1. The officers of the School Board of School District No. 95 have the management and control of the athletic field owned by said School Board.
“2. The said plaintiffs are entitled to the reasonable enjoyment of their property and every part thereof.
“3. The game of softball is not a nuisance per se.
“4. The playing of softball games upon the athletic field of the School District No. 95 at night wherein flood lights are used which illuminate the grounds and the rooms of the plaintiffs’ house, the use of the loud speaker which can be heard for a distance of several blocks, the batting of balls upon the premises of the plaintiffs, the same being recovered by someone from the athletic field, the blowing of the dust from the athletic field upon the premises of the plaintiffs, all constitute a nuisance in fact and the plaintiffs are entitled to have the restraining order issued in the above entitled matter, insofar as it affects the playing of the softball games under the conditions above set out, continued in full force and effect.
“5. As to the use of the athletic field for high school activities the restraining order is modified so as not to include any of the high school activities on said field.”
Judgment was rendered in harmony with these conclusions of law.
Defendants in due time appealed from the order of the court made May 26, 1950, granting a temporary injunction and from the ruling, order, judgment and decision made and entered by the district court on June 23, 1950, overruling and denying defendants’ application to vacate the temporary injunction and continuing the temporary injunction, as modified, in effect, and from the findings of fact and conclusions of law, and from each and every ruling, order, judgment and decision made and entered by the district court.
Appellants contend the court erred in granting the temporary injunction; in admitting and considering incompetent, immaterial and improper evidence; in its findings of fact and conclusions of law; in overruling and denying defendants’ application to vacate the temporary injunction, and in continuing the temporary injunction, as modified, in effect.
These findings are incomplete or inaccurate in at least the following particulars: The finding that the tract was purchased as a field for school activities is incomplete. While it was used for school activities it was also used as a general athletic field for any group in the city who desired to use it. The finding that cars were parked indiscriminately in and about the playing field and elsewhere in the vicinity is inaccurate to the extent there was no evidence that any cars were ever parked in the playing field, and the parking of the cars in the vicinity would not constitute a cause of action for injunction unless they were parked about plaintiffs’ premises so as to’ be objectionable. The allegation in the petition that they were so parked as to deny ingress or egress to plaintiffs’ premises was never established by proof, and all parking of cars in the street between plaintiffs’ premises and the athletic field was stopped early in 1950. The finding that the patrons of the game often trespassed upon plaintiffs’ property in using the toilet facilities was inaccurate at the tíme the petition was filed, for one of the plaintiffs, Mrs. Bishop, testified: “I don’t know of any trespassing that has occurred this year.” There was other evidence to the same effect.
We are first confronted with appellees’ motion to dismiss for the reason that the specifications of error contained in appellants’ abstract refer only to trial errors which may not be raised on appeal in the absence of a motion for a hew trial. The point is not well taken. A motion for a new trial is not needed for a review of the hearing upon a motion. (Federal Land Bank v. Richardson, 146 Kan. 803, 73 P. 2d 1005; Mayall v. American Well Works Co., 149 Kan. 781, 89 P. 2d 846.)
We also note the contention of appellees that the appellants are bound by the findings of fact and conclusions of law made by the trial court. All the cases they cite on that point are cases in which there has been a trial on the merits. No such trial has been had here. There is no provision in our statute for the trial court to make findings of fact and conclusions of law upon the hearing of a motion. The findings of fact and conclusions of law made may be helpful, but they are incomplete in some respects and inaccurate in others. We think we can best dispose of the case by taking up each of the questions relied upon by plaintiffs and examining the record with respect to them.
First we note, if it makes any difference, that the games played were softball games and not baseball games, as alleged in the petition. The allegation in the petition that the athletic field was being used for a private purpose and that the use made of it was not “a public use in any manner,” was thoroughly disproved by the evidence. The testimony was that:
“After the acquisition of the ground it has been used for soft ball and track purposes and for baseball. Shortly after the ground was acquired a city league made up of four or six teams in the city played twilight baseball there . . . Some of the organizations which have so used the field were the city baseball league, the younger boys, the boy scouts and the boys baseball organization. The field has always been open to anyone that wanted to use it . . .
“Four or five Whitewater teams play there during the course of the season. The groups which play there are the boys scouts, the grade school group, older men and the high school, and young fellows just out of high school. Most of the players are school boys. Some adults play on the field. There is no other field in the vicinity which can be used for playing softball.
“Most of the high school boys play on the regular team, the rest of the teams are grade school age. There are four or five different teams which use the field. There is no other athletic field around Whitewater.”
None of this evidence was controverted. A number of the witnesses called by the plaintiffs or by the defendants testified that an athletic field for the playing of the games, such as were played there, was beneficial to the communiy and its citizens, and that no other similar athletic field existed in Whitewater. There was testimony about some talk or efforts to raise money by contributions to buy another tract of ground and fix it up for an athletic field, but because of the estimated expense it never got further than the talking stage.
The allegation in plaintiffs’ petition that the value of their property had been decreased by the playing of the softball games in the athletic field across the street from their property was not established by any proof. Indeed, the only evidence directly bearing upon the point was to the contrary. It is true that several witnesses testified they would not like to live in the property when the games were being played where they were. Of course, some people would not like to live next to a church, or to a school ground, or to a gen eral store, or to a filling station or garage. That fact does not prevent the owners of those properties from using them for the purposes mentioned unless they are used in such a way as to cause specific damage or an actionable private nuisance to the adjoining owner.
The allegation in plaintiffs’ petition that the school board, in permitting the group to fix up the athletic field as it was done in 1948, acted “contrary to law” is futile and G. S. 1949, 72-1033 appears to give ample authority to the board for its action. More than that, so far as this case is concerned, it is no concern to plaintiffs. If an inquiry is to be made as to whether the school board exceeded its legal authority it should be made in an action by the state on the relation of the attorney general or the county attorney. The plaintiffs here are concerned only with whether what was done created a nuisance as to them.
However, a school district, being a quasi-public corporation, has no more right to create and maintain a situation that is a nuisance to private individuals than a municipal corporation would have (Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798), or a private corporation (Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208). In all cases of this general character which have been called to our attention the court looked to the particular things that were done, and which were alleged to have constituted a nuisance, to see if they really did so, and that if they found a nuisance had been created, to abate or enjoin the continuance thereof. (See, Casteel v. Town of Afton, 227 Ia. 61, 287 N. W. 245; Warren Company v. Dickson, 185 Ga. 481, 195 S. E. 568, where the questions are thoroughly considered.)
We turn now to the specific complaints made by the plaintiffs. They complain of the public address system. The testimony was that this was sufficiently loud that it could be heard six or seven blocks, or all over town. We can very readily see how plaintiffs could be annoyed by that continuing through a ball game several nights a week, and it is our judgment that it should be enjoined.
They complain of the dust caused by the grading of the field, which was done by removing the grass from it, and by the dragging of the field after rains and before the games. Counsel for appellants suggest that the annoyance from the dust has been greatly exaggerated. It is true the evidence discloses that the soil in that vicinity blows easily; that the road along E street, directly west of plaintiffs’ property and of the athletic field, was very dusty before the black top was put on a few years ago, and that it is likely plaintiffs have some dust other than that created by the working of the playing portion of the athletic field. However, the evidence is quite convincing that the dust from the athletic field was a real nuisance to plaintiffs. It is an artificial condition created by the improvement and use of the athletic field. We think that should be enjoined. This probably means the resodding or sowing of grass on that portion of the field which has been made bare, but whatever is required should be done to relieve plaintiffs from this nuisance.
We are not greatly impressed with the complaint of the plaintiffs about the flood lights. Those on the west side of the athletic field are directed to the east; those on the north side to the south; so no light is directed toward plaintiffs’ residence. The lights are bright, some of them being 1,000 candle power and some 1,500. The number of them is not disclosed. They do light up the playing field and some light reflects from the playing field to the residence of the plaintiffs. The plaintiff, Mrs. Bishop, testified: “Ten o’clock is earlier than my usual bed time.” We think any substantial objection to the lights will be avoided if the games are closed early enough so that the lights can be turned out by ten o’clock at night. This may require the games to be started a little earlier than has been the custom, or the playing of fewer than the regular innings of the game, but this will not seriously handicap their operation. Defendants should be enjoined from permitting the lights to be used after ten o’clock at night.
Plaintiffs have made much of the trespassing upon their property by those who attend the games, but the record clearly shows that this trespassing ceased early in 1950 and that none of it was existing at the time of the filing of the petition in this case. No doubt that was a nuisance while it lasted, but the injunction should have gone only to situations which existed when the action was filed.
With respect to the crowds, Mrs. Bishop testified: “The crowd is large, there is tooting of horns, and lots of cheering and calling back and forth. . . . The . crowd is not any different from any crowd at a ball game. . . . Whitewater is an orderly and peaceable town, and I have seen no conduct on the part of the spectators or participants in these games.at which to take offense.” Another plaintiff, Helen Neiman, testified: “The noise from the spectators was the usual noise from such recreational facilities. Whitewater crowds are well behaved. I believe the young people should have recreational facilities.”
Plaintiffs complain about boys going- on their property to retrieve balls. This was so trivial that it was not mentioned in the petition. There was evidence that at times when a ball would be knocked or thrown so that it went on plaintiffs’ land several children would run to find it, and if they could not find it at once they would come back the next day. But in the evidence it appears that method of retrieving balls had changed so that one boy scout was given the duty of retrieving a ball which went back of the backstop; that the ball would have to go as much as eighty feet back of the backstop before it would be on plaintiffs’ premises, and that not more than one or two in a game went that far. There is no contention that the balls struck the windows or the house or did any other damage to the property.
The trial court correctly found that the officers of the school board have the management and the control of the athletic field. This is in harmony with our statute (G. S. 1949, 72-1033). It then erroneously enjoined the school board from permitting the use of the athletic field to any group or organization which conducts or proposes to conduct any activity whatsoever in connection with baseball games or exhibitions, or to any other group or organization using or proposing to use the athletic field for any other purpose except the use of the athletic field for high school activities.
The result is that the judgment of the trial court must be modified by setting aside the temporary injunction as made, and also setting aside its order continuing it in force as modified, and the injunction should be granted against the use of the address system at the ball games and against the continuance of using the field so as to produce dust which blows upon plaintiffs’ property, and against the use of the flood lights later than 10:00 o’clock p. m.
It is so ordered.
Parker, J., concurs in the result. | [
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The opinion of the court was delivered by
Greene, J. :
Moses W. Richardson, as trustee for Charles Richardson, under the will of Rosa Baker Richardson, recovered a judgment in the district court of McPherson county against Joshua Baker, quieting the title to certain real estate in the trustee. Service was had on Joshua Baker by publication. Afterward, and within three years, Frank O. Johnson, as administrator, made application to have the judgment opened and to be permitted to defend. He served the proper notice and filed the necessary affidavits therefor, and also filed therein his answer, as such administrator, alleging, in substance: That the real estate held in the name of Joshua Baker, the title to which had been set aside in the action, was conveyed to him by Moses W. Richardson in fraud of the creditors of Moses W. Richardson, Rosa Baker Richardson, and the Showalter Mortgage Company, a corporation in which Moses W. Richardson was a stockholder and director ; that Joshua Baker had died in Rio Janeiro insolvent; that during his lifetime, for a valuable consideration, he had sold all of the lands described in plaintiff’s petition and conveyed the same by warranty deed, and that his estate is liable to his grantees on such warranties. The court below accepted this answer as a defense and tentatively opened the judgment and heard the evidence, but refused to set aside the judgment, and rendered judgment for costs against the administrator, from which he prosecutes error to this court.
The answer shows that by the judgment of the court the title had passed back to the estate from which it is s'aid it had fraudulently passed to Baker, •and stands liable to the creditors of that estate. That is where it should be. What claim had Baker to demand of a court that it restore to him that which he admits he held only in fraud of the rights-of the creditors of his grantor ? ' The only reason-given by the administrator in the answer was that prior to his-death Baker conveyed these lands by warranty deed, and his estate is liable on this contract of warranty. To this there are two answers r First, if Baker during his lifetime parted with his title and interest in the property, the administrator-can have no interest in the litigation; second, if he-died insolvent, his estate will not suffer seriously from any liability that may exist on his contract of' warranty.
The statement in the answer that the title was placed in Baker for the purpose of defrauding the creditors of the grantor is not a ground for relief from the judgment.
Having no other interest in the real estate than that of a fraudulent grantee, the judgment of the court refusing to set aside the judgment which canceled that title is affirmed.
All the Justices concurring. | [
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Per Curiam:
The judgment of the court below is affirmed on the authority of Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867. | [
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The opinion of the court was delivered by
Greene, J.:
The material facts necessary to an understanding of this case are these : In 1894, while one Eugene B. McBride was the owner of the southwest quarter of section 36, township 13, range 23, in Johnson county, Kansas, the defendant railroad company instituted proceedings which resulted in the' condemnation of 20.44 acres of said tract of land to be used by it in catching and storing surface water for use .in operating its engines. The award was paid into the county treasury, and accepted and drawn therefrom by the owner. The defendant, company .went into the immediate possession of the condemned land and erected a basin, or reservoir, thereon which covered the greater portion thereof. Some time thereafter Eugene B. McBride died and the plaintiff in this action, Carrie McBride Dillon, became the owner in fee simple by inheritance. The other plaintiff is her husband.
The defendant company condemned and flooded other land adjoining the McBride tract, which lies on a lower elevation and is now known as Lake Chanute. The water from the basin on the McBride land is conducted to Lake Chanute by a conduit and from there conveyed directly to the company’s engines. It was alleged in plaintiffs’ petition that about five acres of the McBride tract have never been flooded with water nor actually used by the defendant and are not necessary for the use of that part covered by water; that there are a number of apple trees upon the portion not flooded that have borne fruit annually; that fish are propagated in Lake Chanute and large quantities of ice form on it; all of which have been wrongfully appropriated by defendant, and for which plaintiff sought recovery.
It was alleged that the defendant company leased the McBride land and Lake Chanute to a fishing and boating club for a period of five years, and that this amounted to an abandonment by defendant; that the statute under which the condemnation proceedings were had did not authorize the condemnation by a railway company outside its right of way for water-stations, and the proceedings had thereunder were so ii’regular as to be void. Plaintiffs sought to recover : (1) possession ; (2) damages for overflowing the 20.44 acres so condemned; (3) damages for appropriation by the defendant of fruit grown on the land, and damages resulting from the lease to the fishing and boating club, and for the value of ice sold from Lake Chanute; (4) damages for maintaining a nuisance; (5) damages to ixnprovements on adjoining •portions of plaintiffs’ land, caused by forming the lake or basin.
The defendant pleaded condemnation proceedings by the board of county commissioners, by which it was claimed that the land had been regularly condemned to its use, the condemnation money received by the then owner of the fee, its possession thereunder, and the building and present use of the reservoir.
After the trial had progressed so far as to inform the court of the nature of the questions involved, it refused to hear any evidence upon any of the issues tendered by the petition, except such as related to the rental value of the land included in the 20.44-acre tract not in actual use by the defendant company, and not necessary for the maintenance of its basin, or ’reservoir, and the value of the fruit grown thereon and appropriated by the defendant company. Upon the issues thus defined by the court the cause was tried. The jury returned special findings and a general verdict for the plaintiffs for ninety-five dollars, for which amount judgment was rendered. Plaintiffs prosecute this proceeding and allege error in the rulings above indicated.
The first contention is that the statute under which the condemnation proceedings were had did not authorize the railroad company to condemn a large tract of land, separate and apart from its right of way, for a water-station. These proceedings, were had under section 1359, General Statutes of 1901, which reads :
“Any duly chartered and organized railway corporation may apply to the board of county commissioners of any county through which such corporation proposes to construct its road, to lay off, along the line of such proposed railroad, as located by such company, a route for such proposed railroad, not exceeding one hundred feet in width, except for the purpose of cuttings and embankments it shall be necessary to take more for the proper construction and security of the road, through as much of said county as may be desired by such company; and also such land as may be deemed necessary for side-tracks, depots and workshops, and water-stations. . . .”
We do not find this precise question previously determined by this court. The language of the section above quoted, however, fully authorizes railway companies to cause lands to be condemned for water-stations separate and apart from its right of way. It provides : (1) For the condemnation of a quantity of land for a right of way not exceeding one hundred feet in width ; (2) in addition thereto, other lands where it shall be necessary to take more for the purpose of cuttings and embankments for construction and grade of the road; (3) such other lands as may be deemed necessary for side-tracks, depots, workshops, and water-stations.
The irregularities complained of are that the commissioners failed to embody in their report that the land so condemned was necessary for a proper construction of the road and that they had ascertained carefully the quantity of land necessary for such purpose. These omissions were at most irregularities which might have been corrected in the condemnation proceedings if suggested, and do not render the proceedings void.
It is admitted that Eugene B. McBride collected from the county treasurer the condemnation money; therefore, he could not be heard to say that the proceedings were irx’egular or void, and plaintiffs, who claim the land by inheritance from McBride, are in no better situation to question the proceedings than McBride. (Parsons Water Co. v. Knapp, 33 Kan. 752, 7 Pac. 568 ; C. B. U. P. Rld. Co. v. Andrews, 26 id. 702, 711; Challiss v. A. T. & Santa Fe Rld. Co., 16 id. 117.)
Plaintiffs undertook to show that at the time of the condemnation proceedings the defendant had another pond near its station which furnished an adequate and permanent supply of water for all its uses. This evidence was properly rejected by the court. The necessity for this additional pond and the amount of land to be used for such purpose were determined and finally concluded in the condemnation' proceedings, and were not thereafter questions for future litigation.
It is contended that the court erred in holding that plaintiffs were not entitled to the concurrent occupancy of that portion of the land flooded with water for the purpose of fishing and hunting, nor to the use of the water stored thereon, or icé formed on Lake Chanute. Upon all these questions we think the ruling of the court correct. As the land in question was condemned and the easement paid for by the defendant company, it is entitled to the exclusive control of every part thereof actually used by it for the purpose of catching and storing water, and also all other portions not flooded with water, but the occupancy of which is necessary for the protection of the pond and the conservation of the water.
Railroad companies are public carriers and are properly held to the highest accountibility in the performance of their duties. It is highly important to the general traveling public, as well as to business interests, that such corporations have exclusive possession’ and uninterrupted control of all pi’operty the use of which is necessary in the discharge of this service. If the principle of concurrent occupation of property used by such corporations in carrying on their regular traffic should obtain, the expeditious and safe perform anee of their duties would be difficult, if not possible. (K. C. Rly. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190; Mo. Pac. Rly. Co. v. Manson, 31 id. 337, 2 Pac. 800; K. C. Rld. Co. v. Comm’rs of Jackson Co., 45 id. 716, 26 Pac. 394.) There can be no concurrent occupancy of railroad property in actual use by it in the operation of its business without its consent.
The fact that the defendant company leased this lake to a fishing and boating club is' made much of in the argument. It is earnestly contended that this amounted to an abandonment, and thereupon the right of possession revested in the owner of the fee. The very reverse of this contention appears from the lease, a portion of which reads :
“It being understood that the lessor entirely reserves to itself the sole right to use the water and ice from said pond and to1 direct any changes which it may deem advisable or necessary in the surface of the ground of the leased premises or the banks of the ponds, or the dam or any other portion of said tracts of land ; this lease being intended only to grant to said lessee the right to control said land and ponds for hunting, boating, fishing, bathing and skating purposes, and to prevent any one from interfering therewith, except as herein otherwise limited.”
“It is further agreed, that if this grant or anjTthing done thereunder proves, in the judgment of the general manager of said lessor to be detrimental to the interests of the latter, or if he deems it necessary for its interests that he should have the sole and exclusive control of the leased premises in order to carry out the purposes for which said land was purchased by the lessor, or if the latter shall wish to sell the same, or if said lessee should fail in any respect to comply with the covenants and agreements hereinbefore set forth on their part to be kept and performed, then, in either of such events, this lease may be terminated by said manager, giving to said lessee thirty (30) days’ written notice.”
It will be observed, notwithstanding the lease says it is a grant for five years, that at most it is only a license, subject to be terminated at the option of the general manager of the defendant upon giving thirty days' written notice. It is too plain for argument that it was not the intention of the defendant to abandon this property.
Error is predicated upon the refusal of the judge to instruct the jury in writing. Subdivision 5 of section 4722, General Statutes of 1901, contains this provision :
“The court shall give general instructions to the jury, which shall be in writing, and be numbered, and signed by the judge, if required by either party.”
The record does not show that either party requested the court to give the general instructions in writing. Without such request having been made it was not error for the court to instruct orally.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
John Swayne died in Franklin county May 15, 1898, leaving a will by which hé devised all of his property to his sister, Ann Swayne, who was at the time of her death, and for many years previous thereto had been, a sister of the order of the English •Congregation of Saint Catherine of Sienna of the Third Order of Saint Dominic, of Stone, Staffordshire, England, and was known as Sister Mary Lidwina. The will provided that in case of the death of Ann Swayne before that of the testator all of the property of which he should die.seized should descend to, and become invested in, the order of sisters to which Ann Swayne belonged, such bequests being made to said order of sisters in consideration of the care and kindness which had been rendered by them to the testator’s mother for many years previous to, and at the time of, her death. Ann Swayne died before the testator. The will was admitted to probate and letters testamentary issued thereon June 1, 1898.
On March 15, 1901, nearly three years after the will was probated, one John Swayne filed a motion in .the probate court in which he alleged that he was the nephew and only heir at law of the deceased testator; that the devise to said order of sisters was invalid, illegal, inoperative, and void, because of the uncertainty of the beneficiary or beneficiaries intended by said testator to take under the devise, and asked that the executors be ordered to make final settlement and pay over to him as such heir of the testator all of the estate. The' executors and legatee filed a motion to strike this motion from the files, which latter motion -was sustained by the court.' From this order Swayne appealed to the district court, which overruled the order of the probate court, striking Swayne’s motion from the files, and reinstated the motion and application. To this order the executors and legatee objected and excepted, and prosecute error to this court.
It is the ■ contention of the plaintiffs in error that the application by John Swayne was a proceeding to contest the- will, and that the probate court has no jurisdiction of such proceeding: (1) Because the exclusive authority to entertain proceedings to contest wills is by law conferred upon the district court; (2) that the will having been duly probated more than two years previous to the institution of such proceeding the statute of limitations had barred all right to institute a contest proceeding. Section 7957, General Statutes of 1901, reads :
“The mode of contesting a will shall be by civil action in the district court of the county in which the will was admitted to probate, which action may be brought at. any time within two years after the probate of the will, and not afterwards, by any person interested in the will or estate of the deceased.”
It is very clear to us that the object sought by Swayne in his application was to set aside the will because of the uncertain description of the beneficiaries and to have the property of the testator turned over to him as heir at law.. The argument of counsel for defendant in error in his brief is :
“But Mr. Swayne does not now, and never did, attack the validity of the will. His position is, and always has been, that if the sister of the testator is dead then the property descends to him as heir at law for the reason that the bequest to the order of sisters in England is invalid and inoperative.”
Before the defendant in error can take, it must first be determined that the bequest to the order of sisters is invalid and inoperative. The application stated that the will was invalid, illegal, inoperative and void, and the defendant in error sought to have the probate court so declare. If, as said by counsel, 'the will is valid, then the defendant in error takes nothing. Until .its invalidity is declared'by a court of competent jurisdiction he cannot inherit.
We are of the opinion that this was a proceeding to contest the will, and under the section above quoted the probate court had no jurisdiction to hear or decide this motion. The statute above quoted gives the district court exclusive jurisdiction of actions brought to contest wills and limits the time within which such actions may be brought to two years from the probating of the will.
For‘the reasons above stated the judgment of the court below is reversed, with instructions to dismiss the appeal.
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J. :
The traveling salesman of plaintiff sold defendant company 1500 bales of wire ties and reported such sales to have been made at the price of $1.10 per bale, f. o. b. the cars at Baxter Springs. This sale was made in February, payment to be made May 1. Defendant paid on the purchase-price $1425, leaving a balance due, as shown by the account of plaintiff, of $225. This action was brought on a verified account of the transaction to recover the remainder of the purchase-price. By verified denial, defendant put in issue the correctness of the account, and also alleged, as a complete defense, the fact that the traveling salesman, as agent of plaintiff duly authorized thereto, had guaranteed the price of goods purchased as the date of payment, May 1, 1900 ; that the price of like goods, f. o. b. the cars at Baxter Springs, May 1, 1900, was ninety-five cents per bale and not $1.10, as demanded by plaintiff, and alleged the full payment of the purchase-price at such figure. By proper reply the authority of the agent to attach such condition to the sale was put in issue. Defendant offered no defense in support of the authority of plaintiff’s agent to guarantee the price. There was judgment for defendant. Plaintiff brings error.
The sole question is, Was the general authority of plaintiff’s agent as traveling salesman, in the absence of notice to the contrary on the part of the defendant, as a matter of law, sufficient to bind plaintiff to the conditions attached to the contract of sale as pleaded ? The trial court so instructed. The sale of the goods out of which this controversy arose fell directly within the scope of the agent’s authority. While that authority may, as between the agent and his principal, have been limited and the agent responsible to his principal for exceeding its bounds, yet, as between plaintiff and defendant, as no limitation upon the ágent’s authority was known to defendant, and as the agent acted within the apparent scope of his authority, the conditions attached to the sale bound plaintiff. (Babcock v. Deford, 14 Kan. 408; Bank Bros. v. Everest & Waggener, 35 id. 687, 12 Pac. 141.)
It follows that the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was a suit against the sheriff to enjoin the levy of an execution. The agreed facts are as follows : On August 24, 1901, an action was tried before a justice of. the peace wherein the Kansas City Pump Company was plaintiff and Arthur S. Kendall and Carrie Kendall were defendants. The respective parties appeared by their counsel. Judgment was rendered against both of the Kendalls for $117.10, and against Arthur S. Kendall for $53.02. The same day plaintiff in the action filed its motion for a new trial, which the justice set down for hearing on September 7. Counsel on both sides received notice that the motion would be taken up at that time. On the last-mentioned date the motion was heard and sustained. Counsel for defendants did not appear. The time for the second trial was then set for September 11, of which the Kendalls and their counsel had no notice. On that date a trial was had. Judgment was rendered against both of the Kendalls for $117.52, and against Arthur S. Kendall for $116.28. There was no appearance on their part. The court below refused to enjoin the levy of an execution based on this judgment, and the Kendalls have come here by proceedings in error.
The petition of the plaintiffs below contains no averment that the judgment was not founded on a just indebtedness. They rest their right to relief on the technical point that the justice of the peace was without power to render the judgment.
Invoking the aid of a court of equity, they must arouse the conscience of the court by showing that a wrong has been suffered by them. A party owing a debt is not wronged by the rendition of a judgment against him for the amount, for his obligation is to pay without judgment. For this violated duty the plaintiff's below offered no excuse. Whatever the rights of plaintiff's below may have been in a proceeding at law to vacate or set aside the judgment, in an equitable suit to accomplish the same end their standing depends on their doing, or offering to do, that which is equitable. In Tootle v. Ellis, 63 Kan. 422, 424, 65 Pac. 675, 676, 88 Am. St. Rep. 246, the court said;
“Some cases hold that in cases where no process at all has been served on the defendant the collection of the judgment may be enjoined without showing a defense to the original action, but a large preponderance of the authorities hold that, notwithstanding an alleged want of service of process, a court of equity vyill not interfere to set aside a judgment until it appears that the result, upon a subsequent trial, will be other than, or different from, that already reached ; or, in. other words, that there was a defense to the action, either entire or partial. ( Freem. Judg. §489, and cases cited.) The general principle, as laid down in High on Injunctions, § 114, is that it must be shown to be against good conscience to execute the judgment sought to be enjoined.” (See, also, Knox County v. Harshman, 133 U. S. 152, 10 Sup. Ct. 257, 33 L. Ed. 586, and Texas-Mexican Ry. Co. v. Wright, 88 Tex. 346, 31 L. R. A. 200, and note.)
Furthermore, we regard the failure of the justice of the peace to give notice to the defendants in the action of the time when the second trial would be had as a mere irregularity ; at most an erroneous omission. If counsel for the Kendalls had been present on September 7 when the motion for a new trial was sustained, of the hearing of which motion he had notice, he would have been apprised of the date which the justice set for the second trial. The.parties were all before the justice. ■ He had jurisdiction over them and over the subject-matter of the action.
The action of the justice was irregular or erroneous merely, and not destructive of his jurisdiction. In the case of Barnhart & Brother v. Davis, 30 Kan. 520, 2 Pac. 633, the requirements of section 5306, General Statutes of 1901, received consideration in an action like the present. That section deprives a justice of the peace of any discretion to refuse a change of venue when an affidavit is filed with him by either party to the action, stating “that he verily believes that he cannot have a fair and impartial trial before such justice, on account of the bias or prejudice of the said justice against the affiant.” A refusal by a justice of the peace to grant a change of venue after such an affidavit was filed, and judgment for costs confessed, 'was held not to make the judgment rendered t)y him subject to collateral attack by injunction to restrain the levy of an execution issued for its enforcement. The ruling of the justice in denying the change of venue was held to be merely erroneous and the judgment voidable only. To the same effect see Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
The first question with which we are confronted relates to .the nature of the transaction evidenced by the deed of Hiram Higgins to his children, dated June 15, 1887, but executed and delivered June 11, 1888, and the accompanying agreement given back by the children to him. It is insisted by Mrs. Higgins that, taken together, these papers are but executory and in the nature of a will, and, being testamentary in their character, were subject to be revoked by Hiram Higgins at any time prior to his death, and that the conveyance of the lands mentioned therein to Mrs. Higgins operated to revoke and annul the provisions of the deed. In support of this claim, we are cited to the following decisions of this court: Reed, Ex’r, v. Hazleton, 37 Kan. 321, 325, 15 Pac. 180 ; Hazleton v. Reed, 46 id. 73, 26 Pac. 450 ; Lacy v. Comstock, 55 id. 86, 39 Pac. 1024; Powers v, Scharling, 64 id. 339, 67 Pac. 820.
It is claimed that the case of Lacy v. Comstock, supra, is decisive of the case at bar. It is true that a suggestion was therein made that the conveyance there considered was testamentary in character, and this although words were used in it probably sufficient to carry with them full covenants of warranty accompanied with a reservation of a life-estate, yet we think the case fairly distinguishable from this. However this may be, the case was not decided upon that question, and hence is not authority here,
In the case of Reed v. Hazleton, supra, at page 325, this language was used :
“If an instrument of writing passes a present interest in real estate, although the right to its possession and enjoyment may not accrue until some future time, it is a deed or contract; but if the instrument does not pass an interest or right until the death of the maker, it is a will or testamentary paper.”
This principle is the governing one ih all of the other cited cases and determinative of this question in the case at bar. In the case of Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334, the limitation upon the title contained in the deed was as follows : ‘ ‘ The estate in said lands and tenements not to vest in said named grantees and .their heirs until the death of said Catherine Blauw, she reserving in herself a life-estate therein.” This, however, was held not to operate so as to make the conveyance a testamentary one. The rule laid down in Powers v. Scharling, supra, at page 343, for the solution of this question is as follows :
“ In determining whether an instrument be a' deed or a will, the question is, Did the maker intend to convey any estate or interest whatever to vest before his death and upon the execution of the paper? Or. on the other hand, did he intend that all the interest and estate should take effect only after his .death ? If the former, it is a deed ; if the latter, a will.”
Now, in the case at bar, after the execution of the deed by Hiram Higgins, which conveyed on its face an absolute fee-simple title, he took back the agreement which contained the provision that the grantees were not to sell or dispose of any part of the real estate in any manner during the lifetime of Hiram Higgins without his written consent, and that it should always be his so long as he lived, with the right to convey the same as though a deed had never been given, and at another place in the same agreement the deed is referred to as conveying title to the grantees, and the agreement is that the grantees would execute deeds reconveying the title upon the request of their father. All this leads us to the conclusion that by the entire transaction the grantor intended to convey to the grantees a present interest. We shall soon pass to a discussion of the potency of the repugnant clauses in the agreement. Suffice it to say that, reading this agreement into the deed, the result amounts to nothing more than a conveyance in fee simple to the grantees, with a limitation that the title thus conveyed in prsesenti goes encumbered with a life-estate in the grantor, Hiram Higgins. (Wilson v. Carrico, 140 Ind. 533, 40 N. E. 50, 49 Am. St. Rep. 213, and note; 2 Devl. Deeds, 2d ed., § 855a, et seq.)
Thus far we have discussed the question as though the conditions of the agreement had full force and effect, and might be availed of to contradict and render inoperative any of the provisions found in the' deed with which they might conflict. We do not, however, think this assumption is warranted, but hold rather that if any of the conditions of the agreement would operate, if given force, to nullify the grant of the deéd, they must be disregarded. At the very best, the agreement must be read into the habendum rather than into the premises of the conveyance — must come after the grant rather than go before it. It is a well-established rule in the case of deeds that the first of the repugnant clauses must prevail. If there be a repugnancy between the premises and the habendum, the former must prevail. Thus the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be repugnant to, the estate granted in the premises. (9 A. & E. Encycl. of L., 2d ed., 140.) This is hornbook law, and many cases might be cited in its support; but see Ruggles v. Clare, 45 Kan. 662, 26 Pac. 25 ; Bassett v. Budlong, 77 Mich. 338, 43 N. W. 984, 18 Am. St. Rep. 404 ; Robinson v. Payne, 58 Miss. 690 ; Berridge and wife v. Glassey, 112 Pa. St. 442, 3 Atl. 583, 56 Am. Rep. 322, and note; Owston v. Williams et al., 16 U. C. Q. B. 405; Langlois v. Lesperance, 22 Ont. 682; 1 Tiff. Mod. Law of Real Prop. 171, § 70 ; Gray, Restr. on Alien. of Prop. §§ 19, 22; Cool. Bla. Com., 2d bk., ch. 20.
So that, if we conclude that by this clause in the agreement, “with right to sell and convey the whole or any part thereof the same as though the deed had never been given,” it was intended by the parties to give to Hiram Higgins, notwithstanding his absolute deed of conveyance, the right to control and .convey the same as though no such deed had ever been given, yet, in the light of this principle and these authorities, we would be bound to disregard that clause and hold that it did not serve to defeat the conveyance of the fee.
Further, in the construction of conveyances, as well as of other contracts, where there is an ambiguity,we may take into consideration the surroundings and pui’poses of the parties. It is 'shown in finding No. 4 that the object in executing the deed was to put the title out of Hiram Higgins in order to defraud a creditor. This being the purpose, and the language being sufficient to effectuate it, we hold that, construing the deed and agreement together, the result was to transfer the fee-simple title in all of the property, with an exception which we will hereafter note, to the grantees named therein, retaining, however, in Hiram Higgins a life-estate.
At the time of the execution of this conveyance the northeast quarter was the homestead of Hiram Higgins, and occupied by himself and wife, and as such could not be alienated without the joint consent of the husband and wife. The deed itself, as will be noted, was signed only by Hiram Higgins. Finding No. 19 shows that the wife, prior to the execution of the deed, expressed herself as willing to join in its execution, but did not because it was stated that it was not necessary that she should do so, and after its execution and delivery she expressed herself as being satisfied with it. Does this finding show a joint consent, as required by the constitution? This court has held, in Pilcher v. A. T. & S. F. Rld. Co., 38 Kan. 516, 16 Pac. 945, 5 Am. St. Rep. 770; Dudley v. Shaw, 44 id. 683, 24 Pac. 1114, and Matney v. Linn, 59 id. 613, 54 Pac. 668, that the joint consent required need not neces sarily be expressed in writing, to satisfy the constitutional requirement. But while this is so, the consent must be a joint one. The husband and wife must at the time the conveyance takes effect both consent thereto. They must both give consent at the same time. The nineteenth finding of fact does not show the existence of this joint consent. It merely shows that prior to the execution of _ the deed the wife expressed herself as willing to join in the execution of the deed, and that • after execution and delivery she expressed herself as being satisfied with it. This lacks much of finding that at the time of the delivery, that being the only time the husband is shown to have consented, the wife was so consenting. This being so, as to the homestead the deed was ineffectual to convey.
It is contended by the plaintiff in error Kelley S. E. Higgins that the judgment rendered by the circuit court of Shawnee county, decreeing that he have no interest in the premises in controversy, as stated in finding No. 8, was void for the reason that the same was rendered at a special term of that court; that as the statute creating that court did not give it authority to convene a special term, it was therefore without authority to sit, and had no authority, so sitting, to render the judgment. The act creating the circuit court of Shawnee county is chapter 83 of the Laws of 1891. It does not expressly give that court authority to call a special term thereof, but in section 3 it does provide that for the purpose of the jurisdiction conferred upon it all of the laws of this state relating to the powers and jurisdiction of district courts shall apply to said circuit court, and, as the district court is authorized under the statute to call a special term, we think the language of the act broad enough to confer the same power upon the circuit court. Therefore the judgment against Kelley S. E. Higgins, remaining unreversed, is res judicata as to him, and bars him from any interest he might have had.
The court found in finding No. 4 that the conveyance was executed by Hiram Higgins for the purpose of defrauding a creditor. This being so, the court may not afford him, or any one standing in his shoes, relief therefrom, and, as it is found further, in finding No. 15, that the deed under which the plaintiff claims was executed without other consideration than love and affection, and that at the time she had full knowledge of all the rights of the plaintiffs in error, she takes only such rights as her husband, Hiram Higgins, had, and hence she may not have her title quieted to any of the x’eal estate except as to the homestead, for as to this, it not being liable for his debts, he might lawfully convey it, no matter how fraudulent his purpose.
The power of attorney mentioned in finding No. 3 and the quitclaim deed mentioned in No. 17 serve no purpose in the case.
It follows from what has been said that by the deed of June 11, 1888, Hiram Higgins conveyed to the grantees therein a fee-simple title in and to all of the real estate mentioned, except the northeast quarter of section 11, subject to a life-estate in said Hiram Higgins; that by his deed of January 14, 1899, the defendant in error, Anna M. Higgins, took full title to ■the northeast quarter of section 11, and the life-estate held by her husband in the other property therein described ; that Kelley S. E. Higgins has no title whatever to any of the real estate in controversy. The shares to which the other plaintiffs in error may be ■ uitled, under the facts of the case, have not been considered in this opinion, but are easily determinable.
.Defendant in error challenged by a cross-petition in error the action of the court in taxing the costs of the case to her. This cross-petition, however, was not filed in this court until more than one year after the rendition of the judgment complained of, and hence we have no jurisdiction to entertain the same.
Because of the error of the district court in holding that the plaintiffs in error took no title whatever by the deed of June 11, 1888, this case will be reversed, and remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This was an action 'in replevin by E. T. Webb and William A. Wilson, claiming as mortgagees, against the National Bank of the Republic and Alexander Hurd, to recover possession of 780 yearling calves. At the conclusion of the evidence the court instructed the jury to find for the defendants, upon which finding judgment was accordingly ren- - dered.
It appears that on October 14, 1899, Frank Sigel owned 2300 cows and 100 Hereford bulls branded “F.” These cattle were on a ranch in Meade county, Kansas. On that date Sigel caused an employee named Grimes to execute two promissory notes, payable to the Sigel-Sanders Live-stock Commission Com pany, a Kansas company, one for $61,800, due in one year, the other for $1800, due in six months, and a chattel mortgage on the above-described property and their increase securing these notes. These notes were indorsed by the Sigel-Sanders Live-stock Commission Company to E. T. Webb. The $1800 was paid when it became due. Among the increase of this stock in the spring and summer of 1900 were 780 calves, which were weaned and taken from their mothers on October 27, 1900. On October 13, 1900, Webb surrendered the Grimes note and the mortgage securing the same, and accepted in lieu thereof two notes executed by Frank Sigel to the Sigel-Sanders Live-stock Commission Company, a Missouri company, which indorsed it to him. One was for $40,000 and the other for $21,800, each due one year after date. The $40,000 note was secured by a mortgage made by Frank Sigel on 1610 cows, four to eight years old, 59 Hereford bulls, and 830 one-year-old steers and heifers, all branded “F” on the left side, together with the increase of such cattle. The $21,800 note was secured by other property. Both mortgages described the cattle as being on the Blake-Shattuck ranch, in Meade county, Kansas.
On November 4, 1900, Frank Sigel disposed of the 780 calves to Hurd, and shipped them from Meade county to Hurd’s farm, in Montgomery county, Kansas, in the name of, and to, the Sigel-Sanders Livestock Commission Company, and on or about the 5th •of November Hurd executed a note to the Sigel-Sanders Live-stock Commission Company, the Missouri company, and mortgaged these cattle to secure the same. This note was indorsed by the Missouri company to •the National Bank of the Republic, one of the defend ants in error. William A. Wilson became a part owner of the Sigel note by purchase from Webb.
Among other contentions the plaintiffs claimed under the Grimes mortgage. The defense was that the taking of the two notes by Frank Sigel for the indebtedness of Grimes, one of which was secured by a mortgage on a part of the cattle included in the Grimes mortgage and the other on other property, both of which were payable to a person other than the payee of the Grimes note, and by said other person indorsed to Webb and accepted by him in lieu of the Grimes note, and the surrender of the Grimes note and mortgage by Webb, were, as matter of law, a payment of the Grimes debt and a satisfaction of the mortgage.- The plaintiffs contended that whether such transaction constituted a payment of the Grimes debt and a satisfaction of his mortgage was a question of fact, and should have been submitted to the jury for its determination. The court below accepted the theory of the defendants upon this question and instructed the jury to find for the defendants. This presents the vital question in' this case and, with the view we hold, the only one that is necessary to be decided at this time.
We are of the opinion that the -court- erred in instructing the jury to find for the defendants. It is the settled law of this state, contrary to that of a few other states, that the taking of a new note for one that has matured, or the acceptance of a check or draft for an existing liability, is not even prima facie payment thereof. The question is one of fact, depending upon the intention and agreement of the parties to the transaction, and the burden of proof is upon the one asserting it. (Kermeyer v. Newby, 14 Kan. 164; Shepard v. Allen, 16 id. 182; Medberry v. Soper, 17 id. 369; McCoy v. Hazlett, 14 id. 430; Mullins v. Brown, 32 id. 312 ; Mordis v. Kennedy, 23 id. 408, 3 Am. Rep. 169 ; Bradley v. Harwi, 43 id. 314, 23 Pac. 566; Capital Co. v. Merriam, 60 id. 397, 56 Pac. 757.) The remaining question is, Did the acceptance of the Sigel notes, indorsed by a company other than the indorser of the Grimes note, secured by a mortgage on a part of the property included in the Grimes mortgage, and the surrender of the Grimes note and mortgage, operate, as a matter of law, as a payment of the Grimes note and a satisfaction of that mortgage ? If not, the court should have submitted this question to the jury. This, like the other question, is one of fact and not of law, and can only be determined by ascertaining what the intention and agreement of the parties were at the time of the transaction. It was said in Wylly and others v. Collins & Co., 9 Ga. 223, 240:
“Indeed, the general rule is now well settled, that -a note, bill, acceptance, or promissory note, either of the debtor or of a third person, is no payment or ex-tinguishment of the original demand, unless it is expressly agreed to receive it as payment.”
It was held in First Nat. B’k of Pueblo v. Newton, 10 Colo. 161, 14 Pac. 428, that a note given by Todd & Fairchild, partners, for an indebtedness due from them and one Newton to the bank, which was afterward renewed by a note, signed by the firm of Todd & Fairchild and G. J. Piper, and the old note, surrendered and marked paid, was not a payment of the debt of Todd & Fairchild and Newton. On page 171, the court said : “The giving of the debtor’s own note, bill, or check, or the note, bill or check of a third person, to meet an antecedent indebtedness, is primafacie not a payment or discharge of such indebtedness.” In Tobey v. Barber, 5 Johns. 68, 72, 4 Am. Dec. 326, it was held:
“ It is a rale well settled and repeatedly recognized in this court that taking a note, either of the debtor or of a third person, for a preexisting debt, is no payment, unless it be expressly agreed to take the note as payment, and to run the risk of its being paid; or unless the creditor parts with the note, or is guilty of laches in not presenting it for payment in due time.”
The law recognizes nothing as payment except the payment of money, and, where it is claimed that an existing indebtedness has been otherwise paid, the party making such claim must establish such alleged payment by proof.
There is. some contention by defendants in error that the mortgage executed by Grimes was not renewed within one year after it was filed in the office of the register of deeds of Meade county, nor was a renewal affidavit filed therein prior to the time Hurd became possessed of the cattle, and therefore the Grimes mortgage was void as to subsequent purchasers and mortgagees in good faith. The weakness of this contention as applied to defendant’s case is the fact that there is no evidence sustaining the claim that Hurd purchased the cattle. The plaintiffs undertook to show that he did not purchase them, but the evidence was excluded.
For the reasons assigned, the judgment of the court below is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was a proceeding to probate a will. An answer objecting to the probate and a cross petition asking probate of an earlier will were filed. Upon a hearing the probate court ordered the later will admitted to probate. Upon appeal the district court made the same ruling. The opponents of probate of the later will have appealed.
The petition for the probate set out the jurisdictional facts and alleged that the. will was written by the testator on November 24, 1948, and testator died on November 16, 1949, leaving an estate of the approximate value of $15,000 and five surviving heirs and at the time of the execution of the will testator had testamentary capacity and was not under any influence. This will left a house and lot to Effie Haskell for life, with remainder at her death to Florence and Chester Jones, husband and wife. The next clause left all the residue to Chester Jones and wife.
An amended answer and cross petition was filed by one Seaton. Seaton alleged the will of November 29, 1948, was not the last will and testament of decedent, but merely an appendage to a contract entered into at the same time the will was written between Mr. and Mrs. Jones and testator. A copy of the contract was attached to the answer.
The answer then alleged that testator at the time of making his will was physically feeble and that the Joneses had exercised coercion and influence upon him at the time he wrote it and that the contract was without consideration. The answer then alleged that Seaton was a nephew of decedent and his wife; that they were childless and decedent and his wife had told him frequently that when they were gone he was to have all their possessions; that he lived with them during the time he was in grade school and high school and spent his summer months there; that it was orally agreed between Seaton and the Stewarts that he was to visit them frequently and perform services for them and in consideration of those services he was to have all the Stewart’s property upon the death of the survivor of them and in turn Seaton agreed that he was to continue to perform the services that he had performed in the past. It was further alleged that on July 18, 1921, Stewart executed a will in which he left all of his property to his wife for life and at her death to Seaton in fee; that Cora, the wife, consented to this will and she predeceased her husband.
The petition then contained some allegations that when the Stewarts were first married Mrs. Stewart obtained money from her mother; that this was the basis of their fortune; that such sum was a further consideration for the contract pleaded between the Stewarts and Seaton; that the will of 1921 was actually the will of both Cora and John Stewart and that in furtherance of the contract they had executed it and Cora died on July 18, 1928, relying upon the faithful performance of the contract.
In his cross petition Seaton alleged that he was the principal beneficiary of the estate under the will of 1921 and prayed that it be admitted to probate and the contract between the Joneses and testator be held null and void and the contract between himself and the Stewarts be enforced. The will of 1921 was attached. In it testator bequeathed all of his property to his wife for life and at her death to Albert Seaton. The agreement between John Stewart, the testator, and the Joneses was also attached. It recited the sickness of Stewart; that he was in need of care and nursing; that the Joneses were willing to take care of him and in return therefor the Joneses were to live with testator in his house and were to take care of him and to receive $15 a month for their services. In addition, testator was to make a will leaving to the Joneses his property, except the life estate in the house and lot to the Joneses. This contract bore the same date as the 1948 will.
The probate court first overruled motions of the proponents of the 1948 will to strike certain portions of the amended answer and cross petition, and then found that the will of November 29, 1948, was duly executed; that at the time of its execution the testator was of sound and disposing mind and memory and under no restraint and that it was his valid and genuine will. The court further found that as to the contract pleaded by Seaton the allegations as to it had not been sustained and that it should not be enforced.
The 1948 will was then decreed to be the last will of testator. Albert Seaton appealed to the district court. It was stipulated that both wills were executed in all respects in the manner provided by law and that at both times testator was a person of sound mind and memory. It was agreed that the issues involved were the questions of undue influence pleaded by Seaton to have been exercised upon decedent prior to the execution of the 1948 will and the enforcement of the contract pleaded between Seaton and the Stewarts.
Seaton introduced evidence to support his allegations of undue influence. Upon completion of it, the proponent’s demurrer to it was sustained. Seaton then introduced evidence in support of his allegations as to the contract and upon completion of it the proponent’s demurrer to it was sustained. The trial court thereupon found that Seaton had failed to sustain the burden of proof as to the undue influence and the contract and that the will of November 29, 1948, was valid and should be admitted to probate. Judgment was entered accordingly. Seaton appealed from the order admitting the will to probate and denying the probate of the will offered by him and denying the existence of the oral contract.
His specifications of error are that the court erred in refusing to admit into evidence the contract between testator and the Joneses; in ruling that all evidence proffered as to the alleged oral contract between Seaton and Mr. and Mrs. Stewart was inadmissible; and by holding that the date of the execution of the contract was an essential part of it; and in sustaining the demurrer of the proponent to Seaton’s evidence.
Apparently Seaton has abandoned his contention that undue influence was exercised upon testator. At any rate, he does not deal with that at all in his brief. Be this as it may, there is no evidence whatever to sustain such a contention.
Seaton had the burden of proving that the contract between himself and Mr. and Mrs. Stewart was actually entered into and was performed by him.
The first question argued here is that the court erred in refusing to admit the contract between the Joneses and testator in the evidence. He does not make any argument at all' on this point and he cites no authorities. We can find no reasonable basis for admitting the agreement nor can we find how it could have affected the issues being tried if it had been admitted.
This contract was attached to the answer and cross petition— hence is available to us. Viewed in its most favorable light for the argument of the opponent of the will, it appears to have been simply a contract to make a will in return for services. It appears that the will followed the terms of the contract. The only bearing it would have had upon the issues of fact being tried, that is, the testamentary capacity of the testator, would have been that it appears to have been a rather provident contract for the testator and as far as this record discloses was carried out. We hold that the opponent of the will was not prejudiced by the court’s failure to permit it to be introduced.
Defendant next argues that the court erred in holding that all evidence of the alleged oral contract was inadmissible by reason of the failure of Seaton to establish the date of the alleged contract within a period of three months. One difficulty about proving or disproving such an issue was that the answer and cross petition pleaded a contractual relationship between Seaton and Mr. and Mrs. Stewart from the time Seaton was a little boy along in the early twenties up until the time the testator died. We have scrutinized the testimony offered by Seaton and admitted in evidence as to this contract, as well as that rejected, and which Seaton argues should have been admitted. Altogether it did not constitute substantial evidence that such a contract was made or that it was performed, even had the rejected evidence been admitted. Furthermore, the evidence proffered by Seaton and which he argues the court erred in not admitting was not offered the trial court on the hearing of the motion for a new trial. Under such circumstances, we will not review the action of the trial court in refusing to admit it. (See Higbee v. Bloom, 108 Kan. 723, 196 Pac. 1080; In re Estate of Casida, 156 Kan. 73, 131 P. 2d 644; also Yarberry v. Hertzler, 151 Kan. 651, 100 P. 2d 629; also In re Estate of Regle, 170 Kan. 558, 228 P. 2d 722.)
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the district court sustaining a motion filed by the appellee (mother) for change of custody of her thirteen year-old son from the appellant (father) to the appellee. The motion was filed in the original divorce action in which appellant prevailed. The order appealed from also awarded to appellee child support and attorney’s fees.
Appellant charges error of the court (1) in abuse of its judicial discretion in awarding change of custody on the evidence adduced; (2) in awarding defendant’s attorney fees and assessing costs against appellant; (3) in overruling appellant’s motion for a rehearing; and (4) in questioning the child informally and basing its decision wholly on the child’s preference.
Briefly, tire facts involved herein axe as follows: Appellant, Albert W. Maston, obtained a divorce by default from appellee, Elsie Maston, on March 21, 1949, on the ground of gross neglect of duty, and custody of the parties’ three children, including Albert Leroy Maston, now thirteen years old and the child involved in this custody proceeding, was awarded to the father, appellant here. About the same time appellant’s present wife, Kathryn, obtained a divorce from Everett Mayfield on the grounds of gross neglect of duty and extreme cruelty, and custody of that couple’s two infant children was awarded to her. Afterward the parties intermarried, Kathryn Mayfield to Albert W. Maston and Elsie Maston to Everett May-field, so that all five minor children became members of appellant’s family. $15.00 weekly was contributed by Everett Mayfield for support of his two children.
On June 2, 1950, fourteen months after the Maston divorce was granted, the two Maston boys, Albert Leroy and Richard D. Mas-ton, aged 19, voluntarily left appellant’s home and went to live with their mother, the appellee. On July 30, appellee filed a motion in the original divorce action asking for change of custody of Albert Leroy, and after listening to the evidence, the court on November 13, 1950, ordered custody of Albert Leroy changed from the father to the mother and ordered appellant father to pay the sum of $12.50 weekly for child support and $50.00 attorney’s fee. From this order of the trial court, appellant brings this appeal here. Thereafter appellee filed a motion in this court for allowance of child support, attorney’s fees and expenses pending the appeal, which motion was granted in part.
We will first consider whether the lower court abused its discretion in changing the custody of the minor child. In an unbroken fine of decisions of this court, it has been held that the jurisdiction of the district court over the custody and support of minor children in .a divorce action is a continuing jurisdiction (G. S. 1949, 60-1510), and that the court may on proper motion and notice modify and change any order previously made providing for such custody and support whenever circumstances are shown which make such modification proper. (Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127; Teegarden v. Teegarden, 155 Kan. 195, 124 P. 2d 464; Phillips v. Phillips, 163 Kan. 710, 712, 186 P. 2d 102; Sharp v. Sharp, 154 Kan. 175, 176, 117 P. 2d 561)
Moreover, it is also a well established rule in this state that whether the court will change the custody of children rests in the sound discretion of the trial court in view of all the facts and circumstances shown by the evidence. (Prier v. Lancaster, 169 Kan. 368, 371, 219 P. 2d 358; Kogler v. Kogler, 163 Kan. 62, 179 P. 2d 940; Hayn v. Hayn, supra)
Appellant concedes the foregoing rules of law but contends that appellee’s evidence for change of custody of the child was insufficient to justify a change of the custody and that the lower court disregarded the evidence and based its decision wholly upon the child’s preference to live with his mother. An examination of the record discloses that the trial court heard and considered ample evidence concerning the welfare of the child. The testimony of both real and foster parents was heard; the elder brother of the child in controversy testified; and the court specially interrogated the child. Matters concerning the home environment, personal relationships, fitness and financial condition of both homes was investigated by the court. It is not necessary to describe in minute detail the evidence presented to the trial court; it need only be said that after considering the evidence, the trial court found that circumstances and conditions affecting the best interests of the child had altered sufficiently to make a change in custody advisable. In view of the record, we cannot say the trial court abused its discretion in awarding custody of the minor child to his mother, appellee herein, and in making provisions for his support.
Appellant next contends that the trial court erred in entering judgment against him for $50.00 attorney fees. As heretofore stated, appellant obtained a divorce by default from appellee on March 21, 1949, and at that time appellant was awarded the custody of the minor child in question. Appellee acquiesced in said judgment and took no appeal within the time provided by law, and the court decree granting the divorce became final. About sixteen months thereafter, appellee filed a motion in the same divorce case asking that the judgment of the court rendered on March 21, 1949, be modified in that she be granted custody of the minor child in question. G. S. 1949, 60-1507 provides among other things that in a divorce action the trial court may make such order relative to the expenses of the suit as will insure the wife efficient preparation of her case. Appellant contends that inasmuch as the decree of divorce had been granted, the lower court had no right to allow appellee attorney fees in this proceeding. This brings us to the question whether the above statute provides for allowing attorney fees to a former wife who institutes a subsequent proceeding on her own motion to change the custody of a minor child.
Attorney fees have been allowed the wife in resisting an application by her husband to take from her the custody of their children which had been awarded to her in the divorce action. (Hipple v. Hipple, 128 Kan. 406, 278 Pac. 33) We have also allowed attorney fees to the wife in resisting an application brought by her husband to set aside a judgment for child support. (Bush v. Bush, 158 Kan. 760, 150 P. 2d 168) Attorney fees have been allowed where a former wife seeks an order increasing the support money for the children and makes a showing before the court that she is not financially able to employ counsel. (Davis v. Davis, 148 Kan. 826, 84 P. 2d 849)
However, the rule in the above cases is distinguishable. from that in the instant case. In the cases just reviewed, the wife was required to defend her position as a result of her husband’s action or inaction. But in the instant case appellee, on her own motion, sought to modify the original order granting custody of the minor child to appellant and brought appellant into court where he sought no affirmative relief other than to defend his rights under the original judgment. It is the law of this state that a wife may recover reasonable attorney fees from the husband in a suit for divorce wherein she is compelled by the wrongs of her husband to employ counsel to protect her rights, but this is not that kind of an action. The divorce case between appellant and appellee had previously been disposed of, and while the present action does involve custody of the minor child, it is not a divorce action or even a suit between husband and wife. The allowance of attorney fees is wholly statutory, and insofar as the instant case is not covered by statute, it is no different from any other law suit between individuals where there was no contract to pay attorney fees. (In re Hipple, 124 Kan. 3, 7, 256 Pac. 1015) Where one seeks to destroy a judgment, it must be considered on a different basis than where one seeks to defend or enforce a judgment. 'Under the facts of this particular case, we think the item of attorney fees is not recoverable.
In view of what has been said, the judgment is affirmed as to the custody of the child and the provision made for his support, but the judgment allowing an attorney’s fee is reversed and the cause remanded to the trial court with directions to set aside that part of the judgment allowing an attorney’s fee. | [
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The opinion of the court was delivered by
Mason, J.:
One Garverich and one Hanna owned adjoining lots in Salina. Garverich built a two-story brick building on his lot with a partition wall for the use of both lots standing six inches over the line on Hanna’s lot. This was done under a written contract providing that Hanna or his assigns should have the right to use this wall and to join a building to it upon paying half its cash value to Garverich or his assigns. This contract was not recorded, and without actual knowledge of it Kastner bought Hanna’s lot, receiving an ordinary warranty deed. Benz bought Garverich’s lot. In 1902 Kastner built a two-story brick building on his lot, using the partition wall referred- to, and extending it upward a few feet and backward about ten feet. This was done under an agreement between Benz and Kastner, the terms of which are in dispute, but the claim of Benz (which has some evidence to support it, and so, in view of the ruling of the tria court, it must be accepted for the purposes of this pro ceeding) is that he permitted Kastner to join to the wall and make these changes under an agreement that Kastner should in consideration thereof place a stairway in the building he was about to erect and permit Benz to use it permanently for access to the second-story of his building, and that in view of this arrangement Kastner made certain alterations in his own premises. After the completion of the building Benz was permitted to use the stairway for a month or two, when Kastner concluded to close the opening through which Benz entered the second-floor of his building from the stairway, by filling in his half of the wall across such opening. Benz began a suit to enjoin Kastner from closing such opening. pon oral evidence a temporary injunction was granted, and this proceeding is brought by Kastner to reverse such order.
It is contended by plaintiff in error that it was error to admit in evidence the written contract between Hanna and Garverich. As the contract was not recorded and no attempt was made to prove that Kastner had actual notice of it, it was not binding upon him. (Sharp v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433 ; Brower v. Williams, 44 N. Y. App. Div. 377, 60 N. Y. Supp. 716.) The existence of the wall, built partly on the lot purchased by him, was not inconsistent with the record title, and its use by the adjoining lotowner did not constitute an adverse possession. (Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 57 Am. Rep. 138.) But we do not regard the admission of the contract at the hearing on the application for a temporary injunction as prejudicial error. However, the release of Kastner from an assumed obligation to pay half the value of the wall before using it himself could constitute a consideration for the subsequent oral contract. There was, nevertheless, a sufficient consideration apart from this. Granting that Kastner had a right to raise the party wall without the consent of Benz (22 A. & E. Encycl. of L., 2d ed., 247), he had no such right to extendit to the rear, as was done. (Id. 248.) The permission- granted him by Benz to do so was therefore a good consideration for the agreement that Benz might have access to his second story by means of Kastner’s stairway.
The question is therefore fairly presented whether an executed parol license which was given for a valuable consideration, and upon the strength of which the licensee has expended money or labor, may be revoked at the pleasure of the licensor. The English courts hold that such a license is revocable. In this country there are two lines of decisions, substantially equal in number and authority. The English and American cases are cited in very full notes in the eighteenth volume of the American and English Encyclopedia of Law, second edition, at pages 1145 to 1147. The question being new in this court, we adopt the reasoning that impresses us as being more in keeping with modern ideas of equitable principles as well as with natural justice. Cases can readily be imagined where the revocation of a license in reliance upon which the licensee has changed his own situation might work the gravest fraud, injustice, and injury. Under the plaintiff’s theory of the facts in the present case, the denial by the defendant of plaintiff’s right to use the stairway after the latter had consented to the extension of the party wall upon his land and altered his own building to conform to the new arrangement is unconscionable. Accepting plaintiff’s evidence as true, we hold that defendant is estopped from revoking the license.
The decision of the trial court is affirmed.
All the Justices concurring. | [
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Per Curiam:
This was an action by the defendant in error on a petition setting out facts which would warrant the entering of a decree for a divorce and alimony, or for alimony alone, against the plaintiff in error, then her husband. A decree for both divorce and alimony was entered. The most meritorious question raised on the petition is whether, under a petition whose allegations would authorize a divorce but the prayer of which is only that alimony be allowed, a decree of divorce should be granted; - It is well settled in this state that the prayer of the petition forms no part of it, and that relief may be granted in accordance with the facts stated in the petition rather than pursuant to its prayer. (Smith v. Kimball, 36 Kan. 474, 492, 13 Pac. 801; Walker v. Fleming, 37 id. 171, 14 Pac. 470.) But it is here insisted that, where the facts pleaded warrant more than one kind of relief, plaintiff should have only such relief as he prays for; that otherwise defendant might be misled in the presentation of his evidence, not knowing the ultimate and true purpose of plaintiff in the prosecution of the action. No effort was made by the defendant to require the plaintiff to state how much relief -she was desiring. He knew from the allegations of the pe tition that she might obtain a divorce. He ohose to go into the trial without requesting a declaration as to the extent of the relief which she desired. Besides this, we-think it fairly inferable from the record that the defendant was notified that the action was one by which the plaintiff expected to obtain a divorce, and that defendant conducted his case upon that theory.
Considerable space is devoted in the brief of plaintiff in-error to a discussion of the evidence and its sufficiency. All of the evidence with its claimed contradictions was before the trial court. It deemed it sufficient. We are not in a position to take an opposite view; indeed, we are inclined to the same conclusion.
Special claims of error growing out of the admission and rejection of evidence are presented. We find nothing warranting a reversal of the decree therein.
The judgment of the lower court will be affirmed. | [
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The opinion of the court was delivered by
Burch, J. :
The plaintiff was a brakeman on one of defendant’s freight-trains, and received injuries in alighting from the train while it was in rapid motion, for the purpose of closing a switch. The action was founded upon the negligence of the company’s employees in failing to reduce the speed of the train. With other defenses, the company pleaded a contract of settlement and release, of which the following is a copy: • .
“ Claim No. 4123. (Form 514 Regular.) Audit No. 18905. ,
Series 6.
Recorded in............
The Atchison, Topeka & Santa Fe Railway Company,
To ffm. Vanordstrand, Brakeman, Dr.
Dodge City, Kansas.
1899.
Jany. 10. For, and in full release, discharge and satisfaction of all claims, demands or causes of action arising from or growing out of all personal injuries sustained by me in alighting from way-car on train No. 31, while said train was in motion, at La Junta, Colo., June 15, 1898. In making this settlement no promise is or has been made for future employment. Settled in full for $750.
Division
Acc’t No. 56.
Examined by Approved : Correct:
C. S. J. D. M. Hamilton, C.W. Ryus,
Claims Attorney. General Claim Agent.
Approved : Approved : Approved :
J. E. McLeod, J. S. Lauck,
For General Manager. Auditor of Disbursements.
“Received of the Atchison, Topeka & Santa Fe Railway Company, seven hundred fifty & dollars, in full payment of the above claim. In consideration of the payment of said sum of money, I, Wm. Vanordstrand, of Dodge City, in the county of Ford and state of Kansas, hereby remise, release and forever discharge the company of and from all manner of actions, causes of actions, suits, debts and sums of money, dues, claims and demands whatsoever, in law or equity, which I have ever had or now have against said company, by reason of any matter, cause or thing whatever, whether the same arose upon con-, tract or upon tort.
“I have read the above voucher and receipt and fully understand the same.
“In testimony whereof, I have hereunto set my hand, this 10th day of January, 1899.
Wm. Vanordstrand.
“Witnesses: C. W. Ryus.
“Note. — Claimant must insert in his own handwriting, in the space above the words ‘In testimony whereof,’ the following: ‘I have read the above voucher and receipt and fully understand the same.’
“Note. — The above receipt must be dated and signed by the party in whose favor this voucher is made, or when signed by another party the authority for so doing must, in all cases, accompany it; and when signed ‘his mark,’ signature must be witnessed. When receipted for a railroad company or other corporation or organization, the party signing will please designate his official title and name of corporation or organization. One party signing for another must give his own name in full.”
The plaintiff replied admitting the execution of the release, but alleged that it had been procured through the fraud of the company. The jury returned a verdict for the plaintiff, and made answer to special questions submitted by the- defendant, certain of which were as follows:
“10. Did the plaintiff write in such release with pen and ink the words, ‘Ihave read the above voucher and receipt and fully understand the same’? An§. Yes.
“11. Was the plaintiff able to read the release that he signed and to understand it, if he read it ? A. Yes.
“12. Was the plaintiff in any way prevented from reading the release in question before signing it? A. Yes?
“13. If you answer the question numbered 12 in the affirmative, state in answer to this question -in what way the plaintiff was prevented from reading the release. A. Somewhat hurried.
“14. Was the plaintiff induced to sign the release by any fraud on the part of defendant’s agent or agents ? A. Yes.
“15. If you answer question No. 14 in the affirmative, state in answer to this question in what such fraud consisted. A. It consisted in intimidation, and undue influence was brought to bear on plaintiff, owing to his stringent financial condition, and reliance of plaintiff upon allusion to future employment by defendant’s agents, as shown by testimony and correspondence between defendant’s agents and plaintiff.”
“17. Did the defendant company by its representatives at all times deny that defendant was under legal obligation to pay plaintiff anything ? A. Yes.”
Judgment was rendered on the verdict, and the company brings the case to this court.
The plaintiff’s evidence disclosed that he sought the settlement himself, and that it was consummated at the defendant’s offices in Topeka, whither he had gone for the purpose of effecting it. There is no testimony in the record which will support the finding of intimidation. Intimidation is a different kind of imposition from fraud. It involves the use of violence or threats of violence, express or implied, as a means of compulsion; .and no question relating to that subject was raised by the pleadings or submitted to the jury by the court. ' The only influence, if any, brought to bear upon the plaintiff, or which he claimed in any way induced him to sign the written agreement, was the matter of future employment. This he very much desired, on account of his financial situation. The fifteenth finding of fact goes no further, therefore, than to declare that the fraud, which induced plaintiff to sign the contract of settlement and release, consisted in allusions to future employment made to him while he was under the stress of a stringent financial condition, and upon which he relied. The plaintiff testified that he psCrtially read the instrument he signed, and that he understood it was a release. After the execution of the contract plaintiff was paid the sum of $750, which he has not offered to retiirn. Upon this-state of the record, may the judgment of the .district court be upheld?
It needs neither argument nor citation of authority to show that allusions to future employment are insufficient to establish fraud. It is very probable that the jury intended to find no more than is involved in the ordinary meaning of the word “allusions.” The written contract denied that any actual promise of future employment had been made. The testimony of an employee of the defendant company, who claimed to have heard the conversations resulting in the settlement, also d.enied such promise. The conversation of the parties did involve a reference to the matter of future employment, and the agent of the company who conducted the negotiations gave the plaintiff an unsealed letter for him to deliver to the company’s superintendent at Pueblo, Col., recommending the plaintiff for" employment if it could consistently be furnished him. But if an absolute agreement on the subject had been made, naturally the letter would have been couched in something like positive and definite terms. Therefore, the jury were probably unwilling to go to the extent of finding that any express promise had been made ; and accepting the word “allusion” in its ordinary sense of passing, casual, slight or incidental reference, of hint, suggestion, or insinuation, the defendant is entitled to a judgment on the special findings.
Allowing to the jury, however, some ineptitude of expression, and assuming that it meant to find a promise óf future employment, can any different result be reached ? The plaintiff himself wrote into the contract the statement that he had read it and fully understood it and signed it. He was able to read it. He admitted reading a part of it, and he was able to comprehend its meaning upon a perusal of it. The jury, found, however, that he was prevented from reading it by being “somewhat hurried.” There was no finding of any special relation of trust and confidence between the parties; no representation by the agent of the company as to what the paper contained.; no misreading of the instrument by such agent; no stealthily-made change in either its form or its substance ; no surreptitious substitution of one paper for another; nor any,trick or deception in any'matter touching the execution of the paper. The plaintiff was simply “somewhat hurried” ; that is, hurried “in some degree or measure ; a little.” (Webst. Diet., “Somewhat.”) Against this vague and hazy palliative stands plaintiff’s duty to read.
“The very fact of the signature carries some evidence that it was voluntarily and knowingly signed, and there should be something like satisfactory evidence of ignorance or imposition before such instru-ment can be repudiated.” (Buchanan v. Gibbs, 26 Kan. 277.)
“The mortgage was complete, except the signature of Mrs. Roach, when presented to her by her husband to be signed, and she at no time asked for it to be read to her. If she was in any manner mistaken or defrauded as to the contents of the mortgage, such result was the consequence of her own gross negligence. She should have demanded that the instrument be read to her. If she relied on the representations’of her husband, it was at her peril alone.” (Roach v. Karr, 18 Kan. 529, 534, 26 Am. Rep. 778.)
“A party cannot guard against forgery; but if in possession of his faculties and able to read, he can know the character of every instrument to which he puts his signature ; and it is a duty which he owes to any party who may be subsequently affected by his act, to know what it is which he signs. By his signature he invites the credence of the world to every statement and promise which is in the instrument he has subscribed; and he is guilty of negligence if he omits to use the ordinary means of ascertaining what those provisions and statements are. If he has eyes and can see, he ought to examine ; if he can read, he ought to read ; and he has no right to send his signature out into the world affixed to an instrument of whose contents he is ignorant.” (Orb v. Fowler, 31 Kan. 478, 482, 2 Pac. 580, 47 Am. Rep.501.)
“The demurrer was properly sustained. It does not ■ appear from the complaint that any relation of especial trust or confidence existed between the parties to the contract, or that the means of knowledge as to the terms and conditions of the writing were not equally open and accessible to both. The care and diligence ,of a prudent man in the transaction of his business would demand an examination of the instrument before signing, either by himself or by some one for him in whom he had a right to place confidence.
“ The fact that the plaintiff was illiterate, and could read manuscript only with difficulty,-did not render this precaution less necessary.” (Hawkins v. Hawkins, 50 Cal. 558.)
“In an action on a note payable one year after date, and to foreclose a mortgage executed to secure it, an answer that the plaintiff represented at the time the mortgage was made that it was payable in five years, and, relying on the word of the plaintiff, the defendant did not read the mortgage or have it read, and that the original agreement was that the defendant should have five years, was not a good answer.” (Bacon v. Markley, 46 Ind. 116.)
In the light of such law, it would be a judicial antic to declare that a little haste in affixing his signature on the part of a man with the plaintiff’s mental capacity and capability will suffice to nullify his contract, if after deliberation he chooses to repudiate it. Therefore, the answers to special questions 12 and 13 furnish no legal justification or excuse for plaintiff’s not reading the contract he signed, and he must be held to the same knowledge of its provisions as if he had' read it.
The position taken by plaintiff in his reply to the answer was that one comprehensive agreement of settlement was made ; that one of the subjects covered was the matter of future employment; that the part of the contract relating to future employment should have been included in the written evidence of the agreement, but that it was omitted. There is no correspondence in the record between plaintiff and defendant’s agent prior to January 10, 1899, the date of settlement, relating to the employment of the plaintiff by the defendant. Hence, any promise upon that subject inducing the contract was necessarily oral, as the reply indicates. None of the subsequent correspondence on the part of the railway company can be construed into any acknowledgment or recognition whatever of any previous obligation to reemploy the plaintiff. Therefore, the only support of the fourteenth and fifteenth findings of fact was oral testimony, and such was the" theory of the reply.
The plaintiff’s pleadings and the findings of the jury present the simple case of an attempt to supplement a written contract by parol evidence so as to extend its terms to cover a matter which the instrument itself excludes. Since the jury found that the defendant at all times denied any obligation to pay the plaintiff anything for his 'injuries, the instrument signed was-not a mere unilateral acknowledgment or admission,' but was a contract of settlement and release by way of compromise, which, if valid at all, became binding when the defendant paid to the plaintiff the agreed sum of money. The contract is full and complete in its terms, unambiguous, reasonable, and plain. The plaintiff signed it understandingly and voluntarily. It is, therefore, the measure of the rights of the parties to it. (Milich v. Armour, 60 Kan. 229, 56 Pac. 1; Ehrsam v. Brown, 64 id. 466, 67 Pac. 867 ; Thisler v. Mackey, 65 id. 464, 70 Pac. 334; Rodgers v. Perrault, 41 id. 385, 21 Pac. 287; Willard v. Ostrander, 46 id. 591, 26 Pac. 1017 ; Railway Co. v. Truskett, ante, p. 26, 72 Pac. 562.)
I,t adds nothing to the character- of plaintiff’s claim to call the final result of the transaction a fraud when it appears that the writing itself was freely signed, with knowledge of its contents. Whether the claimed oral promise of employment was in good faith or false, whether the plaintiff relied upon it or not, and whether any attempt was made to carry it out or not, will not be investigated. If the promise existed at all, it existed as a part of a negotiation which was finally concluded by a writing Of a different purport, which writing was willingly executed with full opportunity of knowledge, and, therefore, with full knowledge of its contents. If there- was any change of terms the plaintiff will be held to have consented to such change. (Phares v. The Lake Shore etc. R. W. Co., 20 Ind. App. 54, 50 N. E. 306.)
In Thisler v. Mackey, supra, it would not have aided the - maker of the notes to say that he would not have purchased the stallion and given the notes without the oral promise of the seller to take him back, and that
the seller did not intend to take the horse back when he made ' the promise. And in Milich v. Armour, supra, it would have added nothing to plaintiff’s case had he said he would not have executed the written contract except in reliance upon the oral promise of future employment which defendant did not intend to keep.
The truth of any business transaction is best disclosed by the written evidence of it, prepared and signed at the time; and under the limitations recognized in the cases cited above such evidence is conclusive in the courts of this state. In Coal and Iron Co. v. Willing, Appellant, 180 Pa. St. 165, 36 Atl. 737, 57 Am. St. Rep. 626, it was said :
“The existence of a contemporaneous parol agreement between the parties under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted between the parties. It is a fraud to secure the execution of an instrument by representations as to the manner in which payment shall be made, different in important particulars from those contained in the paper, and, after the paper has been signed, to attempt to compel literal compliance with its terms regardless "of the contemporaneous agreement without which it would never have been signed at all.”
But the rule excluding parol evidence to vary written contracts has never obtained in that state. (Greenawalt v. Kohne, 85 Pa. St. 369, 375.) Therefore the decision quoted from cannot be followed.
The judgment of the district court is reversed, with direction to enter judgment for the defendant.
All the Justices concurring. | [
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Per Ctiriam:
Prank Vennum was convicted in the district court of Barber county of the embezzlement of a mare entrusted to him as bailee by the owner, A. M. Lumpkin, and appeals. Accepting the evidence of the state as true, it showed this state of facts: The mare was in charge of Vennum, at Medicine Lodge, in Barber county, for training. On one occasion Lumpkin, while at Medicine Lodge, was told by defendant that the next day he was going to take another mare, belonging to a third person, down to the new country — the Lawton country. Lumpkin returned that evening to his home, near Sharon, a station on the railroad by which such shipment would be made, and the next day he went to Sharon to see the mare as it went through. Upon the train he found Vennum and his (Lumpkin’s) own mare. Lumpkin asked Vennum why he had his mare instead of the other, and Vennum answered that the owner would not let the other go. Vennum urged Lumpkin to accompany him to Wichita, and he finally consented and did so. At Wichita the mare was unloaded and placed by Lumpkin in a livery-stable. Vennum and Lumpkin associated at Wichita on very friendly terms. Lumpkin gave Vennum a power of attorney to sell the mare, and returned home. Vennum had represented that, he could sell the mare for $1000 to $1500, and Lumpkin told him not to sell for less than $235. Vennum sold the mare to the lawyer who had drawn the power of attorney for $100, which was paid him, and which he kept.
To justify a conviction under the charge, the evidence must show a completed offense at the time Lumpkin discovered his mare in shipment at Sharon. The conduct of the complaining witness just stated seems inconsistent with the idea of an embezzlement completed or attempted at that time. The subsequent sale of the mare for less than the authorized price and the appropriation of the proceeds,, however strongly they may show defendant’s moral turpitude, do not tend to establish a prior embezzlement.
We think the evidence insufficient to sustain the conviction, and the judgment is accordingly reversed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of replevin to recover a steam drill which had been used in mining operations. Under a contract the Scott Mining and Smelting Company leased property consisting of land, machinery, tools and supplies to George A. Williams for a term of years. He operated the mine for a number of months, when the property in controversy passed into the possession of the defendants Shultz & Clary, who refused to deliver it to the Scott Mining and Smelting Company upon its demand, and thereupon the present action was brought.
The question for determination was whether the ownership of the personal property, including the steam drill, was transferred by the plaintiff to Williams, or whether he was required to return the identical articles delivered to him by the plaintiff at the expiration of the lease. Some testimony was submitted on behalf of the plaintiff, after which the court, upon demurrer, ruled in favor of the defendants.
The intention and rights of the parties must be determined mainly from the terms of the contract itself. It related to two kinds of property, real and personal. There were nine mining lots, with appurtenances and improvements, leased for a stated time at a stipulated royalty, and it was agreed that Williams should construct, maintain and support shafts and drifts in a particular way; and further, that all erections, modi fications or construction of buildings and machinery thereon should be and remain the property of the lessor. Then the lease contained the following, which is contended to be a controlling provision :
“It being further agreed, as part consideration, that the said second party shall take all articles of personal property, 'tools, supplies, extras, etc., according to the invoice of the same to be made upon the execution of this lease, the said second party agreeing that at the time of the expiration of this lease, by its terms or by sale, to return all said articles so enumerated in the invoice in kind or value, as per the invoice value hereto annexed, at the option of the party of the first part.”
The provision that the personal property might be returned in kind or value, and according to values fixed by an invoice made by the parties, gives character to the transaction. In the absence of anything showing a different understanding of the parties, such a transaction is ordinarily treated as a transfer of the property and illustrates the distinction between a bailment and a sale. If the identical thing delivered is to be returned it is a bailment, and there is no transfer of title ; but if the one to whom it is delivered may return another thing of the same kind, or an equivalent in the form of money, or otherwise, it will ordinarily constitute a sale and effect a change of title. (Carpenter v. Griffin, 9 Paige 310, 37 Am. Dec. 396; Powder Co. v. Burkhardt, 97 U. S. 110, 24 L. Ed. 973 ; Caldwell v. Hall, 60 Miss. 330 ; Mallory v. Willis, 4 N. Y. 76 ; Hurd v. West, 7 Cow. [N. Y.] 752 ; National Car & L. Builder v. Cyclone Steam Snow Plow Co., 49 Minn. 125, 51 N. W. 657; Smith v. Smith, 91 Mich. 7, 51 N. W. 694; Barnes v. Morse, 38 Ill. App. 274; Heryford v. Davis, 102 U. S. 235, 26 L. Ed. 160; 3 A. & E. Encycl. of L., 2d ed., 734; Jones, Bail. §74, and Story, Bail. §47.)
Included in the personal property invoiced to the lessee were supplies, consisting of coal, powder, fuse, and the like, which were used in the daily operation of the mine, and certainly it was not ,within the contemplation of the parties that property of that kind should be returned at the end of the five years. As to such articles the only practicable method of restoration was the one adopted, of returning an equivalent in kind or value, and to that end an invoice fixing the values of all personal property was made. It is said that such supplies were insignificant in amount and value; but it will be observed that all of the personal property was subject to the same condition as that intended for daily consumption, showing quite clearly that as to personal property there was no expectation or purpose of restoring the identical articles delivered to the lessee.
It is true, as plaintiff contends, that we are not confined to a single provision in ascertaining the intention of the parties, but must gather it from the entire lease and the circumstances under which it was made. Attention, therefore, is called to the provisions requiring the lessee to keep the property and machinery in good working order, wear and tear excepted ; also, one providing that the buildings and machinery constructed upon the property shall remain the property of the lessor, and the still further stipulation that at the expiration of the lease the lessee shall surrender possession of the property “in as good a condition as they now are, the usual wear, unavoidable accidents and loss by fire excepted.” Although some of these provisions refer in general terms to the property leased, we think they were intended to apply to the real estate. General references like these cannot overcome the specific provisions made for the return of personal property. The fourth clause of the lease is devoted to that class of property, and provides, as we have seen, that it shall be returned in kind and value as the lessor may elect, thus making a clear distinction between the real and personal property -leased.
Under that provision the title of the property passed to the lessee, and the trial court rightly held that the plaintiff had failed to establish a right of recovery of the property in controversy. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J. :
About eleven o’clock on the morning ■of April 18, 1902, in the little town of Herndon, Rawlins county, Doctor Rowland was twice shot with a 38-caliber revolver, one bullet passing through his head and the other through his heart, killing him almost instantly. The killing was done in a room called the flour-room, attached to and forming a part of the general-merchandise store building of defendant. The defendant and deceased had,resided in this town for many years. Both were married. They and their families, in so far as shown by the evidence, had lived in intimate and friendly relations. On the morning of the tragedy Doctor Rowland appeared at the store, spoke to defendant, saying: “Good morning, George. Where is Jesse [a clerk] ? I want to speak to you.” At the time defendant was sitting upon a lounge or settee in the storeroom, near the front door, wearing neither coat nor vest. The two walked a few feet into the flour-room, and stood near the front door leading from the street into that room. People passing observed them so standing and talking in an apparently friendly but interested manner. The evidence further shows that within a few seconds after being last observed so standing talking two shots were fired. The deceased was found lying where he had stood talking. There were powder marks upon his face, hand, and collar. Hence, it is evident the shots were fired at close range. It also appears that the shots were fired from the direction in which defendant was last seen standing, if deceased remained standing in the same position he had occupied. When first seen after the shooting defendant was sitting at his desk in the rear of the store at work upon his accounts, seemingly unperturbed. When by his clerk apprised of the killing he went at once to the deceased, prepared a pillow for his head, and in other ways assisted in ministering to his wants. While the testimony shows there was conversation be tween defendant and deceased on the morning of the tragedy in relation to some chattel-mortgage property, yet the record tends to show the visit made by deceased to the defendant was made with the knowledge of the wife of deceased, who, after the tragedy, sent for defendant to come to her bedside, where she lay sick and prostrated, and with great solicitation inquired whether the weather and the crop prospects were all they had talked about just prior to the tragedy, to which defendant responded “yes.”
Upon the firing of the shots the flour-room was filled with smoke. One witness, passing, claims to have seen the legs of some one retreating through a wareroom in the rear of the flour-room just after the shooting occurred. There was a passageway back through this wareroom by which defendant could have gone after the shooting to his desk where seen just after the tragedy. A door in the rear of this wareroom which fastened from the inside was found unfastened and slightly ajar after the killing. The shots were fired from a 38-'caliber weapon. Defendant owned a 38-caliber revolver. He was in the habit of carrying it to and from his store in the morning .and evening, as he carried cash in some amounts from the store to his home. This revolver was afterward secured from the defendant, and when secured all the chambers were found loaded, two of which bore evidence of having been recently fired. This condition of the weapon was accounted for by evidence of the defendant and his wife that he had fired two shots .at rats at his home.
No person other than defendant, deceased and the clerk in the store was seen around the store near the time of the tragedy. No one was seen leaving the building. It was not shown that deceased had any enemy who had ever threatened his life or would be inclined to compass his death.
• Defendant was arrested, charged with the crime of murder in the first degree, tried, and convicted of murder in the second degree, and appeals to, this court.
The principal points in the evidence are presented in the briefs of counsel. This evidence, on the one hand, discloses almost an entire want of motive on the part of defendant to design or accomplish the death of deceased. On the other hand, there is in the evidence an entire absence of any plausible theory by which the deceased could have come to his death save at the hands of defendant. A case more barren of testimony upon the two features mentioned can scarcely be conceived, and, fortunately for those whose duty it is to assist in the enforcement of the law, seldom occurs.
The principal objection urged against the judgment of conviction is an utter want of evidence in its support. The evidence is circumstantial, the cause of the homicide shrouded in mystery. No motive on the part of the defendant to commit the deed is shown, yet, upon all the facts and circumstances in the case that go to make up the evidence found in the record, under the law as given by the court, the jury, with the witnesses for and against the accused face to face, assumed the responsibility of declaring the guilt of of the accused. This declaration of guilt has been upheld by-the trial court, better able to judge of the manner, demeanor and credibility of the witnesses than is this court. Hence, it is now too late again to draw into controversy the question of the guilt or innocence of the accused, unless it maybe said that there is an entire absence of testimony upon some essential element of the crime vital to a conviction, or the trial court has, as shown by the record, misjudged the law to the prejudice of the accused.
No defense is interposed save that the deed was not done by the defendant. When the evidence found in the record is fully considered in all its bearings; when it is remembered that immediately prior to the tragedy deceased and defendant were seen together, standing in such relative positions that had the shots been fired by defendant they would probably have struck the deceased where the wounds resulting in death were made; that the balls which caused the death were fired from a weapon of the same caliber as that found in the possession of the accused thereafter, two chambers of which weapon had been recently discharged ; the'Utter improbability, not to say impossibility, of the wounds’ having been inflicted either by the hand of the deceased or that of a third person; the fact that the accused admits having heard the shots fired in such close proximity to him without concern or investigation, when the firing did attract ,the immediate attention of others in the vicinity; the further fact that the interview between deceased and defendant was sought by deceased and intended to be of a private nature ; the route taken by the accused from the place of his interview with deceased to the place where he was first seen after the tragedy was committed ; the improbability of the testimony of accused that when the interview closed he left deceased standing where he was immediately thereafter found' dying, and that he had no knowledge of the commission of the tragedy — when these facts are considered with all the other circumstances in the case, as shown by the record, the mind is of necessity almost irresistibly compelled to the conclusion that defendant must have committed the deed, although what motive, if any, actuated him thereto lies hidden in his breast, is not known, and may never be discovered until the last great day.
Conceding then, as we must, sufficient evidence found in the record to support the verdict of guilt, did the trial court err in matter of law to the prejudice of the defendant? Upon the question of motive the charge to the jury reads :
“The presence or absence of a motive for the alleged commission of an alleged crime is always an important ingredient for the consideration of the jury in determining the guilt or the innocence of the person charged, yet when the accused is shown beyond a reasonable doubt, even if only by circumstantial evidence, to be the perpetrator of the alleged crime, it is not necessary that there be proof of motive ; there is no occasion for explaining the reason of his acts. Every man of sane mind is presumed to intend the reasonable and natural consequences of his own acts.”
We think this instruction correctly states the law. Complaint is made of the manner of indorsing names on the information and its authentication by the prosecuting attorney. In this there was no error.
The only question of merit arising upon the law of the case is found in the charge of the court to the jury. Instruction 8 reads :
“When the killing is done with a deadly weapon or a weapon calculated to produce death, malice may be legitimately inferred in the absence of proof that the act was done in necessary self-defense or upon sufficient provocation or cause, and the presumption in such case will be that the act was voluntarily committed with malice aforethought.”
Was the giving of this instruction error ? M!r. Bishop, in his work on Criminal Law, volume 2, section 680, says :
“As a general doctrine, subject, we shall see, to some qualifications, the malice of murder is conclusively inferred from the unlawful use of a deadly weapon, resulting in death.”
In the case of Commonwealth v. York, 9 Metc. 93, 94, 43 Am. Dec. 373, it was held :
“The rule of law is, when the fact of killing is proved to have been committed by the accused,'and nothing further is shown, the presumption of law is that it is malicious, and an act of murder. • It follows, therefore, that in such cases the proof of matter of excuse or extenuation lies on the accused; and this may appear, either from evidence adduced by the prosecution, or evidence offered by the defendant.”
In the case of The State v. Earnest, 56 Kan. 31, 42 Pac. 359, this court held :
“On the trial of a person charged with murder, the jury ought not to be instructed that the killing with a deadly weapon being admitted, the presumption therefore is that such killing was with malice, and that this presumption stands until it is rebutted by evidence. It would be better to instruct them that malice may be inferred from the fact of killing with a deadly weapon, and that they should consider this circumstance in connection with all the other evidence in the case for the purpose of determining -whether the act was malicious or not.”
From the whole charge the jury are advised that if the one disputed fact, the act of killing, be first found .against the accused beyond a reasonable doubt, the proof of motive for the commission of the deed may be dispensed with, and the essential ingredient in the crime of murder, malice, may be inferred from the use of a deadly weapon as the instrument employed to ac complish the deed. This we think proper, and the claim of error is disallowed.
It is further urged that, as there were no mitigating or extenuating circumstances shown or attempted to be shown in the killing, the verdict of murder in the second degree found no support in the testimony, and the jury should have been instructed to convict the defendant of murder in the first degree, or acquit,'as they might find the fact of killing for or against the accused. There is, however, slight evidence found in the record which gives warrant to a charge of murder in the second degree and sustains the judgment. Aside from this, however, the evidence is circumstantial, and the jury may have failed to find from all the facts and circumstances in the case the < deliberation and premeditation essential to uphold a verdict in the higher degree. In the case of The State v. Moore, ante, page 620, 73 Pac. 905, this court held:
“If, upon the trial of a defendant informed against for murder in the first degree, circumstantial evidence relied on for conviction be susceptible of interpretation in such manner as to exclude deliberation and premeditation, an instruction upon the law of murder in the second degree should be given.”
Singular, mysterious and inscrutable as was the killing of the deceased by the defendant, as found by the jury in this case, yet, the jury upon sufficient evidence having found the act of killing to have baen done by the defendant, and no justification therefor having been shown, and no error of law appearing in the record, the conviction must stand.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
This controversy was before the court for consideration in Burns v. Emporia, 63 Kan. 285, 65 Pac. 260, where the substantial facts were stated. The case was then remanded for a new trial because the district court had undertaken to determine as matters of law certain questions which should have been submitted to the jury as matters of fact. Those questions related to the subject of notice to the city, actual and constructive, of the dangerous condition of its street. The same subject is again the apple of discord. Upon the second trial, the evidence relating to notice was submitted to the jury, who found the facts against the city, and a careful analysis of the testimony shows it to be sufficient to sustain the verdict.
The source of notice to the city of the fact that the wire was down in the street was a disturbed condition of the telephone and fire-alarm wires connecting the city fire station with the water-works, some two miles distant. It is argued that the wire which caused the injury was used for the sole purpose of communicating alarms of fire ; that the city might allow the wire to become so far out of repair as to be utterly worthless for the single purpose for which it was maintained without violating any duty to the plaintiff or to other residents of the city.; and that notice of defective fire-alarm service was not notice of an obstructed street. The evidence quite effectively disposes of this argument. Frank Newell, who was in charge of the city’s fire-extinguishing apparatus on the day of the accident, testified that after a fire on the afternoon of that day he undertook to communicate with the engineer at the water-works. His examination then proceeded :
“ Ques. And at the time you rang him up, you and he ascertained the fact that the wire was down? Ans. Yes, we knew there was something wrong with it; we did n’t know the wire was broken in two, only we knew there was a circuit on the fire-alarm wire and the telephone wire.
' “Q. That would indicate that it was down? A. Yes, that would indicate that it was. down or crossed some place.”
Upon cross-examination he further testified :
“ Q,. When did you. have any occasion, after getting through with the fire and getting back, to use that particular wire?. A. When we got back from the fire and I put up the team and got things straightened up in the house so that I could leave them, I went up-stairs to ring Bacon up, and I found when we rang the drop at the water-works dropped.
‘‘Q,. Then what did you" learn? A. Wethenfound out that the wire was either down or crossed some place.
“Q,. It did n’t work? A. No, it did n’t work, nor would n’t work.
“Q,. You were not suspicious that the wire was broken?. A. We didn’t know; only we knew there was trouble with the fire-alarm wire and it did n’t work.
“Q. You knew it had occurred before? A. Yes.”
Frank Bacon, the water-works engineer, testified upon cross-examination as follows :
“Q,. How far apart on the poles were those wires? That is, how much higher was the alarm wire than the telephone wire? A. I couldn’t say. Probably from eighteen to twenty inches.
“Q,. . . . If in either ringing or calling your
attention over the telephone wire it would in fact set off your fire-alarm over at your end of the line, that would indicate to your mind that the alarm wire had broken and dropped down onto the telephone wire? A. It would not .necessarily be broken ; it might have been crossed without being broken.
“Q. Could it ever well be crossed without being broken, if the distance was as far apart as you say— eighteen to twenty inches? A. No, sir.
” Q. In order to drop down onto the telephone wire it would have to be broken? A. No, sir ; sometimes the wires will come loose from the post.”
It is true that Bacon’s subsequent testimony was much opposed to that just quoted, but the jury heard the first answers as well as the later ones.
From this evidence it is apparent that the- city employees knew that there was a likelihood that the wire .was broken and down in the street. Such was one of a very limited number of inferences to be drawn from the physical facts with which they were dealing, and they did not know but that it was the true one. If such were the condition of the wire it was certain to be dangerous to travel. It was the duty of the city, therefore, to investigate, a.nd an investigation would have disclosed the fact that the wire was actually broken, down in the street, and a serious menace to the safety of persons walking and driving along such street. Under these circumstances the city must be held to have had all the information it should have acquired by the exercise of due diligence, and the defendant was not prejudiced by the findings of the jury as to the quantity of information possessed by the mayor of the city when the state of the alarm system was reported to him. A close examination of the record discloses that other special findings are not vulnerable to the attack made upon them.
The second instruction to the jury stated in order the facts of the accident, and it is challenged as assuming as an admitted fact that the fallen wire was the cause of the horse’s running away. The instruction however assumes nothing. . It merely states undisputed facts and leaves the jury to determine from all the evidence, which included the conduct of the horse at the time, cuts found on him afterward, and the manner in which the buggy was involved in the wire, if the wire was the cause of the horse’s fright, and, therefore, of the injury.
The claimed defects of other instructions are not of ■such vital importance as to require a new trial of the action, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam;
After the issues were made up in this case, it was tried on an agreed statement, from which it appears that the plaintiff, a non-resident corporation, was the owner of certain bars, mirrors, etc., paraphernalia ordinarily and generally used in maintaining a public nuisance unr^the prohibition law; that the property, at the time of its destruction, was of the value of $350; that it was leased to one C. T. Conner, to be used by him in the town of Norcatur, Decatur county, in maintaining a place where intoxicating liquors were sold contrary to law. As a consideration for the use of the property, Conner agreed to sell no other beer than that furnished by plaintiff. At the time the property wae destroyed it was being used by Conner in keeping and maintaining a place where intoxicating liquors were sold, bartered and given away contrary to law, with the knowledge and consent of the plaintiff. The defendants, as citizens, and without other authority, entered the place so kept by Conner and destroyed all of such property. This action was brought to recover the value thereof. The plaintiff recovered judgment, and defendants prosecute error to this court.
Defendants make no attempt to justify their acts. They contend that, admitting their wrongs, plaintiff cannot recover, because it is a non-resident corporation and had not, prior to bringing the action, complied with section 1260 of the Greneral Statutes of 1901, which provides that every foreign corporation shall, before doing business in Kansas, procure a license therefor. There is nothing in the agreed statement upon this question. Under the authority of Northrup v. Wills, 65 Kan. 769, 70 Pac. 879, the burden of showing that a non-resident corporation which brings an action in Kansas has not complied with the laws of Kansas and has not obtained a certificate to do business therein is upon the defendant.
It is also contended that plaintiff could not recover against defendants without showing its own unlawful connection with Conner in violating the prohibitory law of Kansas, and therefore could not maintain this action. If a plaintiff cannot prove his cause without showing that he has violated the law in the transaction out of which his alleged cause of action arises and upon which he relies for a recovery, a court of justice will not assist him. (1 Suth. Dam., 2d ed., § 5; Falk v. Brewing Co., 10 Kan. App. 248, 62 Pac. 716.) This principle only applies, however, where the cause of action is depending immediately upon the illegal transaction for its support. In the present caso the plaintiff did not rely upon its illegal contract with Conner for a right of recovery. Its cause of action against the defendants for the wrongful destruction of its proper* does not depend upon or grow out of the unlawful transaction between it and Conner.
Some argument is made in support of the doctrine that this property had no value, because of its unlawful use at the time it was destroyed. This question was entirely eliminated from the case by the agreement of the parties that it was of the value of $350.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
J. O. Lowe was convicted of the larceny of two loads of hay, of the value of eight dollars. That the hay was taken was not denied, but it was claimed to have been taken by mistake. Lowe employed two men with teams to go from Phillipsburg some distance into the country and bring in two loads of hay. He indicated to them the location of the hay and directed them to make inquiries in' the neighborhood where the hay could be found. He followed them and reached the haystacks about the time of their arrival and assisted them in loading it. The hay belonged' to John Cox and was taken from his land, while the hay intended to be taken, as claimed by Lowe, was on the land of Frank Case, in the same neighborhood, of which Lowe had control. The owner of the hay followed the teams into Phillipsburg and upon arrival caused the arrest of Lowe.
On the part of the defendant it is contended that all the circumstances point to an innocent taking. The teams were sent in the daytime; they were directed to make inquiries of the people in the neighborhood as to the hay; there was no concealment; he had hay on the Case land, close to that which was taken; the country in the vicinity of the hay was rough and broken and the division lines between the tracts could not be easily located ; and when informed that Cox’s hay was taken Lowe acknowledged there might be a mistake and offered to pay for it.
Passing the question as to whether the evidence showed a criminal intent on the part of Lowe, the first point is the ruling of the court in striking out the testimony of the defendant as to his intent. He was asked if he intended to steal the hay, and answered: “I did not have any idea of it. I paid the haulers two dollars apiece, or four dollars for hauling the hay from over there.” On motion, this testimony was stricken out by the court. He was a competent witness to testify as to what his intentions were with respect to the taking of the hay. (The State v. Kirby, 62 Kan. 436, 441, 63 Pac. 752.) The last part of the answer, with respect to paying for the hauling of the hay, although not entirely responsive, tended to explain his purpose, and was not sufficiently objectionable to justify the striking out of the whole statement.
A more serious objection, however, was the misconduct of a juror in the jury-room during the deliberations. W. H. Smith, who had stated on his voir dire that he had no knowledge of the case nor prejudice which would prevent him from giving the defendant a fair trial, made statements to the other jurors which greatly reflected on the'character and conduct of the defendant. He told them that Lowe was guilty of another offense ; that he had shot a man at one time and that it had cost the county $2800 ; that he was a bad man who should not be turned loose, but should be convicted. These and similar statements he pressed upon the jurors as arguments in favor of conviction. No testimony of this character was introduced, nor could it have been introduced, on the trial. Such statements asserted as matters of personal knowledge by a juror would, in the nature of things, tend to prejudice defendant, and as there was no showing made by the statement that they were without prejudice, it must be regarded as prejudicial error. (The State v. Burton, 65 Kan. 704, 70 Pac. 640; The State v. Woods, 49 id. 237, 30 Pac. 520 ; The State v. McCormick, 57 id. 440, 46 Pac. 777, 57 Am. St. Rep. 341.) There was no attempt on the part of the state to meet this testimony or show that it did not result in prejudice to the defendant. The testimony as to the criminal intent was rather slight and we cannot say that the verdict was not influenced by the misconduct.
The judgment will be reversed and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
At the general election of 1903 John M. Cory and Drake D. Spencer were opposing candidates for the office of county treasurer of Leavenworth county. On the face of the returns Cory received a majority of the votes, and the canvassing board issued to him a certificate of election. Spencer instituted this proceeding before a regularly organized contest court, which, upon a recount of the votes, excluded a certain number of votes cast by-the members of the Western Branch of the National Home for Disabled Volunteer Soldiers, situated in Delaware township of said county, and declared Spencer to have received a majority of the legal votes cast. Cory appealed to the district court, where a trial was had and judgment rendered in favor of Spencer, and error is prosecuted to this court.
The real question presented is the right of 785 members of the Western Branch of the National Home for Disabled Volunteer Soldiers, situated in Delaware township, Leavenworth county, to vote at such election. Of these votes, 762 were cast for Cory and 23 for Spencer. Of the 762 votes cast for Cory, the contest court sustained objections to, and excluded from the count, 741, on the ground that such members were not residents of Delaware township in said county. This was also the conclusion of the judge of the district court in the trial of the cause.
The persons whose votes -were thus excluded had not, prior to entering the home, established a residence in Delaware township. They entered the home directly — some from different parts of this state, others from the state of Missouri, and possibly some from other states. It is contended by the plaintiff in error that one possessing the qualifications of a legal voter at his place of residence, who abandons that residence with the intention of never returning, and immediately thereafter takes up his residence in the home with the.intention of remaining there permanently, acquires the right to vote there.
We admit that we approach a discussion of this question with some hesitation, not because we entertain doubts about the correctness of the conclusion we have reached, but because of a former decision of this court upon this precise question which we are satisfied is wrong. (Lawrence v. Leidigh, 58 Kan. 594, 50 Pac. 600, 62 Am. St. Rep. 631.) As a matter of judicial policy, it is ofttimes better for the highest tribunal of a' state to adhere to a construction once given to a statute, although erroneous, which by lapse of time has become the .settled law of the state, than-to disturb business conditions, and possibly vested rights, by reversing its own judgment. Generally, when such mistakes grow into the laws, the people may be relied on to make the proper corrections- by legislative enactments, and the injuries consequent upon such changes being made by the court be thus-avoided. This remedy, however, is not efficacious-when mistakes have been made in the interpretation of a constitutional provision.
The following are the agreed facts upon which the question is presented:
“That all of said persons, both married and single, at the time they moved from their places of residence, before coming to said home, abandoned their old homes with the intention on their part of making said home their permanent abiding-place ; and that they intended and claimed said home as their place of residence and abode, and the place to which, when absent, they intended to return.”
The liberty of removing from, and abandoning, a residence once acquired in one portion of the United States and taking up and acquiring a residence in another portion thereof is a right impliedly guaranteed to every citizen, in the lawful and rightful exercise of which he is protected by the constitution of the United States.' What shall be deemed a voting residence in any state is a subject controlled exclusively by the state itself, and is generally covered by some constitutional provision. What qualifications one shall possess before he may claim the right to exercise this privilege in Kansas are prescribed by section 1 of article 5 of our constitution, which reads :
“Every [white] male person of twenty-one years and upwards belonging to either of the following classes — who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote, at least thirty days next preceding such election — shall be deemed a qualified elector. . . .”
The admitted facts bring the members of the home who voted clearly within this provision of the constitution, and their right so to vote would not have been questioned were it not for section 3 of article 5 of the constitution, which reads :
“For the purpose of voting, no person shall be deemed to have gained or lost,a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas, nor while a student of any seminary of learning, nor while kept at any almshouse or other asylum at public expense, nor while confined in any public prison ; and the legislature may make provision for taking the votes of electors who may be absent from their townships or wards, in the volunteer military service of the United States, or the militia service of this state ; but nothing herein contained shall be deemed to allow any soldier, seaman or marine in the regular army or navy of the United States the right to vote.”
The logic of the contention of defendant in error is that, by reason of this section, one entering the home is disqualified while kept there from acquiring a residence for voting purposes, and such was the decision of this court in Lawrence v. Leidigh, supra. The conclusion there reached was that by accepting the bene-fits of the home he forfeited his citizen rights to acquiue a voting residence at that place while he continued to enjoy its privileges. If the constitutional guaranty that any citizen of the United States may voluntarily change his residence for all purposes at will, and the right of suffrage conferred by section 1 of article 5 of our constitution upon every male citizen of the United States who shall have resided in Kansas for six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days next preceding such election, are to be taken from him by other provisions of the constitution, such other provisions should be couched in language so clear as to admit of no other interpretation, so positive as to admit of no doubt. Gourts should not indulge in doubtful interpretations which lead to depriving a citizen of rights plainly guaranteed to him by the constitution.
Conceding, therefore, for the purpose of this case, that the home is an eleemosynary institution, an “almshouse or other asylum,” and maintained at public expense, does the constitutional provision quoted, either in direct terms or by necessary implication, deprive persons, while maintained therein, from acquiring a voting residence? That part of the section applicable to this question reads : “For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence . while kept at any almshouse or other asylum at public expense. . .. .” The conclusion in Lawrence v. Leidigh, supra, so far at least as the reasoning of the court appears, was reached entirely through ascertaining the meaning of the word “deem,” which was found to mean: “ ‘Tohold in belief, estimation, or opinion.’ ‘ To.judge ; adjudge ; decide ; sentence ; condemn.’ ‘Tohave orbe of an opinion.” Its synonyms are ‘esteem’ and suppose.”’ The learned chief justice then elucidated these various definitions of this word as applied to the provision under consideration :
“For voting purposes, no person while kept at an asylum at public expense shall be adjudged or declared to have gained a residence ; nor of him shall the gaining of a residence be held jn belief or estimation ; nor as to him shall any one have or be of an opinion that he has gained such residence. This is the meaning which the law, as well as common usage, has affixed to the word ‘deemed.’ ”
The writer of that opinion, in discussing the word “deemed” and elucidating its application, left out of his illustrations, and overlooked in his reasoning, the language which expresses the intention of the framers of that section, and this omission necessarily led to a wrong conclusion. If these examples were necessary to make plain the meaning of this word as used in the sentence they should have been written:
For voting purposes, no person while kept at an asylum at public expense shall by reason of his presence, be adjudged or declared to have gained a residence ; nor of him shall the gaining of a residence, by reason of his presence, be held in belief or estimation ; nor as to him shall any one have or be of an opinion that by reason of his presence he has gained such residence.
Thus written, the word “deemed” loses none of its force, nor is its meaning obscured or rendered less clear. This writing is expressive of, and keeps constantly and prominently in mind, the thought which was in the mind of the framers of that provision of the constitution, namely, that the fact of residence in an almshouse or other asylum and there being kept at public expense would not of itself be sufficient evidence to establish a voting residence. This provision is not that for the purpose of voting no one can acquire a residence while kept at any almshouse or other asylum at public expense, but that he shall not be deemed or adjudged to have acquired such residence by reason of his presence, while or during the time he is so kept: This provision of the constitution does not prevent one so kept from acquiring a voting residence, if such be his purpose. He is as free to change hisresidence as if he were not a recipient of this bounty.
In support of his contention, the defendant in error strongly relies on the decision in Silvey v. Lindsay et al., 107 N. Y. 55, 13 N. E. 444, which was cited and quoted as a precedent in Lawrence v. Leidigh. We have carefully examined this case, and we are satisfied that it is not an authority on this question. It does not decide the question presented in this case. It appears from the opinion that Silvey offered to vote in the town of Bath, in which was situated the New York Soldiers’ and Sailors’ Home, of which he was a member. His right to vote was challenged on the ground that he was not a resident of the town of Bath. Upon a statement made by him concerning his residence, the board refused to permit him to vote. The court, in stating the question, (page 56) said:
“The question submitted to the court was: ‘Did James Silvey (the plaintiff) gain a residence in the town of Bath, so as to entitle him to vote at said town meeting, by reason of his presence as an inmate of said institution ? ’
‘ ‘ It was agreed that, in case the question was answered in the affirmative, judgment should be rendered in favor of plaintiff for fifty dollars’ damages and costs.”
The statement by Silvey to the board, as quoted in the opinion, at page 58, was as follows:
“I answer that I reside in the town of Bath, for the reason that I was admitted an inmate of the New York Soldiers’ and Sailors’ Home in this town, by the authorities thereof, in the year 1880, and have remained such inmate from that time to the present, with the intention at all times of making my residence in said institution, so long as I shall, be permitted to remain such inmate. At the time of my admission to said institution I was an honorably discharged soldier of the United States, and a resident and voter of the city of New York ; I, therefore, answer that I am a resident of the town of Bath. In becoming an inmate of said institution, I intended to change my residence from the city of New York to the fifth election district of said town of Bath.”
The court then said :
“It is obvious that his narration of an intention to ■change his residence to Bath, and his assertion that he resided in Bath, can be accepted only as conclusions from the circumstances detailed in connection with them. They were his conclusions, and defendants, in view of his whole statement, were not bound by them. "They were bound by the facts stated, and were required to say upon those facts whether the-plaintiff was qualified in the necessary particular, and undoubtedly they were to determine the question at their peril.”
After quoting from the constitution, the court said :
“And the decision of the inspectors of election was that in their opinion the intending voter was in Bath as a mere inmate of the institution and for a tempo- ' rary purpose, and not as a resident of the voting district, or with intent to make the town a fixed or permanent place of residence, and so it would seem.”
On page 60 it was said:
“His only intention in going to Bath was to be an inmate of the home, and it was only as such inmate that his residency was to be continued. . . . He could not gain a residence by being an inmate, which means nothing more than his presence in the home ; and excluding that, there is nothing in the caseto show that a residence in Bath had been acquired.”
The court decided that case on the particular facts involved, and in no way intimated that it was its opinion that under the provisions of the constitution of Ne.w York, which is the same as ours, a voting residence could not be acquired by a member of a soldiers’ home. The language used later in the opinion, while mere dictum, shows clearly what the court thought of the effect of the provision under discussion. On page 61, in speaking with reference to this particular provision, it said:
“But the question in each case is still as it was before the adoption of the constitution, one of domicile or residence, to be decided upon all the circumstances of the case. The provision (art. 2, § 3 ) disqualifies no one ; confers no right upon any one. It simply elimi nates from those circumstances the fact of presence'in the institution named or included within its terms. It settles the law as to the effect of such presence and as to which there had before been a difference of opinion, and declares that it does not constitute a test of a right to vote, and is not to be so regarded. The person offering to vote must find the requisite qualifications elsewhere.
“We think, therefore, the question submitted by the parties, viz., ‘Did James Silvey gain a residence in the town of Bath so as to entitle him to vote at said town-meeting by reason of his presence as an inmate of said institution?’ should have been answered in the negative, and it is so answered by this court.”
It is impossible, by any fair construction of any of the language used in this opinion, to say that it was within the mind of the court to hold that a member of such home could not acquire a voting residence. The only declaration made by the court upon that subject indicates clearly that such was not its understanding. It said that “the provision disqualifies no one” ; that is, disqualifies no one from acquiring a right to vote. It declares that the only effect of the provision is to eliminate from the inquiry the fact of presence and that such presence shall not constitute a test of the right to vote. “The person offering to vote must find the requisite qualifications elsewhere.”
The case of Wolcott v. Holcomb, 97 Mich. 361, 56 N. W. 837, 23 L. R. A. 215, is relied upon as authority for the doctrine that an inmate of a soldiers’ home cannot acquire a voting residence. This case is clearly not applicable under the provisions of our constitution. The Michigan constitution reads :
“No elector shall be deemed to have gained or lost a residence by reason of his being employed in the service of the United States, or of this state ; . . , nor while a student of any seminary of learning; nor while kept at any almshouse or other asylum at public expense ; nor while confined in any public prison.”
The court, at page 367, said :
“We are of the opinion that the terms * by reason of ’ and ‘ while ’ were understood by the framers of the constitution to have a different meaning. In the former case the intention would very largely, if not entirely, govern the question of domicile, while in the latter it would not. It was clearly the intention of the former provision to give the citizen the right, if he chose, to carry his residence with him to the place where he was employed in the service of the United States or of the state, and in the latter case it seems equally clear that it was the intention not to give that right. What object otherwise could there have been in the use of these two terms ? ’ ’
The court there construed the language as operating differently upon the different persons enumerated in the section. Those persons employed in the service of the United States or of the state were held to be within the meaning of the term “by reason of,” and of them it was said that it was the intention to give to such person the right “ to carry his residence with him to the place where he is employed ; that the intention would very largely, if not entirely, govern the question of domicile.” Concerning students of seminaries of learning, and persons kept at almshouses and other asylums at public expense, it was held that they were not included in the term “by reason of,” and therefore were deprived of the right to acquire a voting residence ; that it seemed “equally clear that it was the intention not to give that right.” Whether this distinction be right or wrong, it was the basis of the decision in that case. Our constitutional provisions cannot be thus read. The term “by reason of” is carried through the section and applies alike to all persons therein enumerated^
A decision of this question by the supreme court of Idaho, to which our attention is called, is Powell v. Spademan, 65 Pac. 503, 54 L. R. A. 378, (not officially reported) and deserves attention. The understanding of that court, and the interpretation placed upon the provision, as well as its reasons therefor, are found at page 506, as follows :
“Now, the constitutional provision under consideration does not prohibit inmates of the home, or other asylums kept at public expence, from changing their places of residence. They may do so. But, for the purpose of voting, they shall not be deemed to have gained or lost a residence by reason of their presence in the institution, while kept at public expense.”
To this statement we perfectly agree. In this connection, however, the court also said:
“The constitution does not disfranchise any one. . In the provision under consideration no one is disqualified from voting. It is declared, however, in that provision, where the parties therein named shall vote. When it declares that no one, by reason of presence or absence in certain service, or at certain institutions, shall be regarded or deemed to have gained or lost a residence for the ‘purpose of voting,’ it is only meant that whoever enters such service or such institution, if he votes while in such service or institution, must do so at the place where he was entitled to vote at the time he entered such service or institution.”
The Idaho constitution makes no such declaration. The only declaration it makes is that such person shall not be deemed to be a voter by reason of his presence while in such service or while he remains in, or is kept at, such institution. It is observable that the conclusions of the court found in the quotation are plainly and flatly contradictory. In the first part of the quotation it said that the constitution “does not prohibit the inmates of the home, or other asylums ,kept at public expense, from changing their places of residence. They may do so" ; and later said that the provision declares that if the citizen votes while in such service or institution he must do so at the place where he was entitled to vote at the time he entered such service or institution. In the opinion it was asked:
“Now, having lived in other counties of the state, and having come into Ada county to reside at the Home, to be there kept at public expense, and residing nowhere else in the county, how can we, for the purpose of voting, regard them as 'having gained a residence ’ in the county by reason of their presence at the Home ?”
We answer that such fact would not be so found from the fact alone of their presence at the Home. That is the one and only thing the provision prohibits. It does not prohibit them from gaining such residence but declares that their presence at the Home shall not be deemed the test in determining the question. As expressed in Silvey v. Lindsay, supra, the fact of a voting residence must be found elsewhere; that is, it must be found from other facts. In determining whether a voter possesses the requisite qualifications under our constitution, the intention as expressed in Wolcott v. Holcomb, supra, “would very largely, if not entirely, govern the question of domicile." The fact that the voter had abandoned his former residence with the intention of never returning thereto, and that he had entered the Home with the intention of permanently remaining therein, are sufficient facts, from which it might be found that he had established a voting residence at the Home, provided he possessed the other qualifications.
It is worthy of notice that the court in that case, in construing the section under consideration, carried the term “by reason of” through the section and applied it to all persons enumerated, and then cited the case of Wolcott v. Holcomb, supra, as authority for its opinion that a member of the Home cannot acquire a voting residence, while that case distinctly holds that any person to whom the term “by reason of” is applicable may carry his residence with him.
The reasons assigned by the Idaho court for the provision are that the members of the Home own no property, pay no local taxes, do no work in or for the municipality, and have no pecuniary interest in its local affairs ; that, in fact, they have no connection with, and stand in no relation to, the local municipal government; that the provision was intended to protect the municipal government from the participation of an unconcerned body of men in the control, through the ballot-box, of municipal affairs in whose further conduct they have no interest, and, for the mismanagement of which by the officers their ballots might elect, they sustain no injury. If it were necessary to find reasons for the enactment of this provision, those given are not happy. To hold property, to pay taxes, to do work in or for the benefit of the local municipal government, or to have a pecuniary interest in its local affairs, have never been thought to be necessary qualifications of a voter. What is meant by having “no connection with, and stand in no relation to, the.local municipal government,” is not apparent. All persons are entitled to the enforcement of the laws of such government for the protection of their persons and property. All persons are alike compelled, under penalty, to obey such laws. These are relations which every citizen bears to the local municipal government, whether he be a voter or not. Such persons have, therefore, an interest-in the enactment of proper and just laws and in the election of persons who will fairly and honestly maintain them.
As to the second reason assigned, this case presents facts which fairly illustrate its weakness. At this election there were some twenty or more votes cast by members of the Home, which were admitted to have been legally cast. Can it be said that they had any greater interest in the local government, or stood in any different relation thereto, than the persons whose votes were rejected? They possessed no other qualifications, except that it was found that they had been, residents of the township of Delaware before entering the Home.
The supreme court of California has passed on a provision of its constitution which is exactly like the first subdivision of section 3 of article 5 of our constitution, and, in determining the right of a person engaged in the service of the United States to acquire a voting residence in the state where employed, (People v. Holden, 28 Cal. 123, 136), said:
“Nor did the court err in allowing to the relator the votes of Melindy, Whipple, and McGrew. The objection taken by the defendant to their votes is not well founded. They were not disqualified by reason of section four of article second of the constitution. That section does not add to or take from the conditions upon which the fact of residence is made to depend. It merely declares that ‘no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States,’ which means simply that in determining the fact of residence, presence, or absence in the service of the United States shall not be taken into account, or, in other words, neither presence nor absence in the service of the United States is a condition upon which the fact of residence can be affirmed or denied. Hence, the mere fact that Melindy came to Mendocino county in the capacity of physician, McGrew in the capacity of supervisor, and Whipple in the capacity of laborer to the Indian reservation, did not deprive the first of his former residence in Siskiyou, nor the second of his former residence in Sutter, nor the last of his former residence in Contra Costa. Nor did it preclude them from acquiring a residence in Mendocino, if disposed to do so. That it was their intention to acquire a domicile in Mendocino county sufficiently appears from the evidence. Such being the case, there is nothing in the constitutional provision in question (which is merely declaratory of the common law) which stands in the way of their doing so.”
The precise question before us wa's determined by that court in Stewart v. Kyser, 105 Cal. 459, 463, 39 Pac. 19. It said :
“It is contended for appellant, however, that Killalee could not have gained a residence .for the -purpose of voting at the Veterans’ Home while there as a beneficiary at public expense, for the reason that the gaining of such residence is prohibited by the fourth section of the second article of the constitution of this state, which is as follows :
“‘For the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas ; nor while a student at any seminary of learning; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison.’
“As construed by our supreme court in the case of Budd v. Holden, 28 Cal. 137, this section does not have the effect claimed for it by counsel for appellant. In that case the qualification of soldiers to vote, while employed in the service of the United States, was questioned, and it was decided that their presence in Mendocino county, while thus employed in the service of the United States, did not ‘preclude them from acquiring a residence in Mendocino, if disposed to do so.’ The court further said : ‘That it was their intention to acquire a domicile in Mendocino county sufficiently appears from the evidence. Such being the case, there is nothing in the constitutional provision in question (which is merely declaratory of the common law) which stands in the way of their doing so.’ Thus their residence for the purpose of voting in Mendocino county was made to depend upon proof of their intention to make that county their place of residence while they were present in the service of the United States ; there being no question that they had all other requisite qualifications of electors.”
In Darragh v. Bird, 3 Ore. 229, the question arose over the right of certain employees of the government to acquire a voting residence under the following provision of the Oregon constitution :
‘‘For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States or of this state.”
At page 239 the court said :
‘‘The question of residence being one of act and intention, the framers of the constitution left the matter entirely to the discretion of the parties themselves. They say we will neither enlarge or restrict the right of persons in this respect, but leave it with them to elect as to where they will claim their residence.”
To enforce this idea the court further said, page 240:
‘‘Suppose that a person residing in Wasco county were to go to Salem, in Marion county, to work on a state building, and were to remain there two or three years, would it be contended that he had acquired no residence in that county because he had been an employee of the state ? The fact that he is such employee does not deprive him of his right to elect whether he will retain residence in Wasco county, or whether he will abandon it and adopt another, and the principle is precisely the same whether he be an employee of the state or of the United States.”
In support of the principle announced in this opinion, see Sanders v. Getchell, 76 Me. 158, 49 Am. Rep. 606 ; Lankford v. Gebhart, 130 Mo. 621, 637, 32 S. W. 1127, 51 Am. St. Rep. 585.
These cases express the true interpretation to be given the section of the constitution under consideration.
It is argued that if the principle here announced shall obtain that the convicts in the penitentiaries may acquire a voting residence at the place where it is situated, because they are physically present. Actual presence is all that can be claimed for a convict in the penitentiary, and we have said that mere presence while an inmate or member of such institutions shall not be a test of residence. The convict is not in the penitentiary of his own volition. He does not intend to make that his home, and did not leave his former residence with an intention not-to return. Before he left his former residence he had forfeited his citizen rights to elect to change his residence. He is incapacitated while a convict either to select a residence or to vote at the place where he resided before conviction.
We are also admonished that by adopting this view the provision of the constitution is made a mere rule of evidence, and that it is foreign to the higher .purpose of the organic law to prescribe mere rules of evi- , dence. The framers of our constitution were not of this opinion. Section 13 of the Bill of Rights reads :
“Treason shall consist only in levying war against the state, adhering to its enemies, or giving them aid and comfort. No person shall be convicted of treason, unless on the evidence of two witnesses to the overt act, or confession in open court.”
It will be observed that this section not only prescribes a rule of evidence but also determines the number of witnesses that shall be necessary to prove the fact- and the nature of the evidence to be given by these witnesses before a conviction may be had.
The defendant in error files a cross-petition and alleges error in excluding from the count 310 legal votes cast for Drake D. Spencer. In view of our conclusion, whether or not these votes should have been counted becomes immaterial. If counted and added to the total vote cast for Spencer he would still not have sufficient votes to elect him. His total vote would be considerably less than the total vote received by Cory when there is added to Cory's vote the 741 votes cast for him by the members of the Home which were excluded from his count by the contest court, and the district court.
A contestee in possession of a certificate of election is not required by section 2659, General Statutes of 1901, in defending his right to his certificate, to plead his qualifications to hold the office.
The judgment of the district court is reversed, and the cause remanded with directions to enter judgment for the contestee.
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The opinion of the court was delivered by
Pollock, J. :
This action was brought by T. C. and S. M. Singleton against the railway company to recover damages caused by the obstruction of an alleged watercourse which produced an overflow of plaintiffs’ lands, destroying crops growing thereon. The jury returned a general verdict for plaintiffs, with answers to special questions as follows :
”1. When was the railroad embankment across plaintiffs’ lands which they allege caused their damages constructed?' A. In 1886.
”2. What company constructed said embankment? A. Chicago, Kansas & Western Railroad Company.
”3. What company owned the line of railroad running across plaintiffs’ lands in May, 1898, and which.they allege caused the damages complained of in their petition? A. Chicago, Kansas & Western.
”4. What company was operating said line of railroad in May, 1898? A. Atchison, Topeka & Santa Fe Railway Company.
”5. Is the land of plaintiffs mentioned in their petition bottom land? A. It is. ■
”6. Are there any hills or bluffs on or around the land described in plaintiff’s petition? A. Higher ground east of railroad, but no defined bluffs.
”7. Did any water of any consequence flow into the depression alleged to be a natural watercourse ex-* cept such as in times of very high water in the Verdigris river overflowed its banks, flowed over such depression across a portion of plaintiffs’ lands, and again flowed into said river south of plaintiffs’ lands? A. Very little water flows into depression except what flows from river at times of reasonably high water.
”8. Does the depression claimed by plaintiffs to be a natural watercourse extend to any high bluffs ? A. No.
”9. Did any of the water that flowed into or through said depression come from high bluffs or gorges between bluffs ? A. No.”
”11. For what distance does said depression extend over lands of the plaintiffs ? A. From the river to railroad.
”12. Did any water except surface-water falling upon a portion of plaintiffs’ lands flow through said depression across plaintiffs’ lands except when the Verdigris river overflowed its banks ? A: Yes, when river was three-fourths full.
“13. If you answer the last preceding question in the affirmative, then state what portion of the year, if any, water flowed through said depression, and from what source. A. During the time of freshets ; from the Verdigris river. . ■ ,
“14. Is it not a fact that, prior to the construction of the railroad embankment complained of in plaintiffs’ petition, persons owning land east and southeast of said line of railroad dug a ditch or drain in the direction of a watercourse which flowed from the high land where the town of Benedict is situated, which said named watercourse flowed through ‘Reed’s branch’ into the Verdigris river? A. Yes, for the purpose of draining some swampy land east of the natural watercourse in question.
“15. Did not the water flowing through said depression, during the time of an overflow of the Verdigris river, again flow into said river through said ‘Reed’s branch’? A. Yes.
“16. Is not the land south and southeast of the point where said depression intersects the line of said railroad now in cultivation ? A. Yes.
“17. How much of plaintiffs’ land lying south and east of the Verdigris river was in cultivation in May, 1898? A. About eighty acres.
“18. What kind of crops, if any, were growing on plaintiffs’ land lying south and east of the Verdigris river in May, 1898? A. Corn.
“19. In the event that you find for the plaintiffs, then state how much you award them for injury to crops on the south and east side of the Verdigris river, and also for injury to crops on the north and west side of river, to wit. A. South and east side of river, $80 ; north and west side of river, $1020.”
On motion judgment for costs was entered for defendant on the special findings, notwithstanding the general verdict. Plaintiffs bring error.
The findings of the jury sufficiently disclose the na ture of the case and render a statement of the facts unnecessary. The propositions relied on in support of the judgment rendered are that no natural watercourse was obstructed; and consequently defendant is not liable. The property overflowed was situate in a bend of the Verdigris river. The findings disclose that in times of high water, when the banks of the river were three-fourths filled with water, at the place in question a portion of the water would leave the regular channel, flow across the bend, and again intercept-the regular flow lower down the river. The question is, Does the obstruction of the flow of water under such conditions constitute the obstruction of a natural watercourse and render the obstructor liable for ensuing damages ? The solution of the problem depends on the legal definition of the term “watercourse” or “natural watercourse”; for if water so flowing be surface-water, as contradistinguished from water flowing in a natural watercourse, it is conceded tp be a common enemy against which all may lawfully impose obstruction at will.
This court has considered questions akin to' that here presented. It is contended by counsel for plaintiffs that the findings of the jury bring this case within the definition of a natural watercourse as stated in Palmer v. Waddell, 22 Kan. 352, and as limited in the of case Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241. In Palmer v. Waddell, it was held:
“Where surface-water having no definite source is supplied from falling rains and the melting snow from a hilly region or high bluffs, and owing to the natural formation of the surface of the ground is forced to seek an outlet through a gorge or ravine, and by its flow assumes a definite or natural channel, and escapes through such channel regularly during the spring months of every year, and in seasons of heavy rains, and such has always been the case so far as memory of man runs, held, that such accustomed channels through which the waters flow may fairly be said to possess the attributes of a natural watercourse.”
In Gibbs v. Williams, 25 Kan. 214, it was held :
“In order to create the exception noticed in Palmer v. Waddell, 22 Kan. 352, it is not sufficient that the conformation of the surface be such that the water falling on a large tract of land naturally flows upon and over a depression at one end of that tract; there must be a necessity for the outflow over this depression in order to prevent the flooding of a considerable body of land, and there must be a distinct channel, with well-defined banks, cut through the turf and into - the soil by the flowing of the water ; the bed of a stream, or something which will present on casual glance to every eye the unmistakable evidences of the frequent action of running water.”
The case of Palmer v. Waddell is one frequently commented upon, and this court has declared its intention not to extend the doctrine there announced. In K. C. & E. Rld. Co. v. Riley, 33 Kan. 374, 380, 6 Pac. 581, it was said:
“That is an extreme case, and is limited to surface-water from hilly regions or high bluffs, draining considerable tracts of land through a gorge or ravine, for such a flow as to make a definite or natural channel. The cases of Gibbs v. Williams, supra, and Railroad Co. v. Hammer, supra, decided subsequently to Palmer v. Waddell, show that the terms of that decision were never intended to be broadened.”
Again, in C. K. & N. Rly. Co. v. Steck, 51 Kan. 737, 742, 33 Pac. 601, it was said :
“Defendant in error relies upon Palmer v. Waddellr ■ 22 Kas. 352, but that case fails to sustain his claim. There the surface-water which flowed from a hilly region and accumulated on the lowlands passed through a gorge or ravine, and the flow through this gorge was such- as to make a defined channel, which possessed the attributes of a natural watercourse. That has always been regarded as a border case, and the court has since refused to extend it.”
Hence, if the facts in the case at bar are not clearly within the rule stated in Palmer v. Waddell, as that doctrine is limited in Gibbs v. Williams, we must decline to be concluded thereby. The findings of the jury in the case at bar, when examined, show the conditions present entirely dissimilar from those existing in that case. There, water from rain or melting snow, on account of the elevatio'n and contour of the surrounding country, at certain seasons of each year and under ordinary circumstances was collected and carried through a well-defined channel into the Missouri river. In the case at bar, when there was a rise in the Verdigris river water left its accustomed channel and sought a different route to the same river lower down. In that case the water was obstructed in its ordinary and accustomed flow to its outlet in the river. Here the obstruction interposed is to the flow from its accustomed- course under extraordinary circumstances. Hence we are of the opinion that upon the facts as found the case must be ruled by the principles applicable to the rights of the owner of property near a river to throw up levees or to fence against the overflow from the river.
This court, in Mo. Pac. Rly. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249, held:
“Waters which have overflowed the banks of a stream during a freshet in consequence of the insufficiency of the channel to hold and carry them off are surface-waters, to be treated as a common enemy, against which any landowner affected may protect himself.”
In Lamb v. Reclamation Dist. No. 108, 73 Cal. 125, 134, 14 Pac. 625, 2 Am. St. Rep. 775, it was held:
“The reclamation district has a right to construct and maintain the levee across the mouth of a slough through which, in times of flood, a part of the waters of the river was accustomed to flow and escape upon the adjoining low lands.”
The decision in that case was based upon the reasoning employed in Rex v. Commissioners, 8 Barn. & C. 355. In the opinion, it was said :
“We do not think that Wilkins slough, as between ■ appellant and respondent at least, is to be treated as a watercourse, within the legal meaning of that word. It occasionally happens that a river, in its course from its source to its mouth, divides into two main, permanent channels, each carrying continuously a large part, if not a moiety, of its waters at all stages, and either uniting with the other at a lower point, or continuing to the sea, leaving a delta between the two. But there is nothing here resembling that condition. Wilkins slough is not a channel or fork, continuously carrying a large part, or any part, of the water’s of the Sacramento river. It carries no water at all except ‘in times of flood,’ and then the amount which it carries, when compared with the volume of water-in the river, is insignificant. In fact, it has no original water of its own at all, but is .simply a conduit by which occasionally some of the flood water of the river escapes into the lower lands adjoining. This same office is performed by every other low place along the bank ; and every other part of the levee could be removed as a nuisance if that part of it which is at Wilkins slough can be so removed.”
In the case of The Cairo and Vincennes Railroad Company v. Stevens, 73 Ind. 278, 38 Am. Rep. 139, it was laid down as a general rule m Indiana:
“The owner of land may, upon the boundaries thereof, not interfering with any natural or prescrip live watercourse, erect such barriers as he may deem necessary to keep off surface-water or overflowing floods coming from or across adjacent lands ; and for any consequent repulsion, turning aside or heaping up of these waters to the injury of other lands, he is not responsible.”
In the case of Taylor, Administrator, v. Fickas, 64 Ind. 167, 31 Am. Rep. 114, it appears there were frequent overflows of the Ohio river. The defendant had planted a row of trees on his own land, the effect of which was to cause the driftwood which before had been carried by the overflow across and beyond the plaintiff’s land, without damage to him, to lodge upon the plaintiff’s land and cover five acres of it with driftwood and brush from two to sixteen feet high, whereby said five acres became of no value. It was held that this gave the plaintiff no 'right of action, because the overflow was the result of temporary causes not usually existing.
Under the facts as found by the jury, we are inclined to the opinion that the case at bar cannot be distinguished in principle from the foregoing cases. The judgment for defendant based thereon is right and must be affirmed. This conclusion renders consideration of the further question raised unnecessary.
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The opinion of the court was delivered by
Wertz, J.:
This is an action by a husband for divorce on the grounds of extreme cruelty and gross neglect of duty, and asking for custody and control of the minor child, and other equitable relief. Defendant wife’s answer denied plaintiff’s charges and, by way of cross petition, charged plaintiff with the same faults and in addition thereto, abandonment. She sought separate maintenance, custody of the child, and reasonable support money for the child.
Each party filed a lengthy bill of particulars setting up the acts of extreme cruelty, gross neglect of duty, and abandonment relied on under the pleadings, and showing a chain of events from the time shortly after their marriage in 1926 until the time of the filing of this action in the latter part of 1949 or early 1950.
This appeal is from the judgment of the lower court granting appellee husband a divorce on the grounds of extreme cruelty and gross neglect of duty, and awarding appellant specified real and personal property and child support. Appellant wife charges error of the trial court in that the judgment is not supported by sufficient corroborating evidence; that the acts complained of were condoned by appellee; that the property and child support awards are not supported by the evidence; and in overruling appellant’s motion for a new trial.
The facts disclosed by the pleadings and evidence leading up to this action are briefly as follows: The parties hereto first became acquainted when appellee was a high school student and appellant wife a rural school teacher boarding and rooming at his home; they were married some four years later on May 26, 1926, appellee then being twenty years of age and appellant twenty-four. Their married life was from the beginning somewhat turbulent, appellant expressing disapproval of appellee’s choice of jobs, his family, his hobbies and recreation choices, their houses and furniture (they moved twenty-three times in the twenty-four years of their married life); her constant nagging pertained also to the way he drove a car, his smoking, drinking, and so forth. Appellant continually complained of poor health, and at various times through the years used the persuasive powers of that elusive health, threats of suicide, becoming a nun, and similar “arguments” to gain her way. The parties have one child, a daughter, seventeen years of age at the time this action was brought by appellee.
Appellee left the home twice previous to the time this action was instituted; first in December, 1931, and again in 1947; but both times was induced to return by appellant’s pleading and promises to change her behavior, but the promises were soon forgotten and the record of nagging, fault-finding and public accusations continued until, and even after, appellee left the home and instituted this action for divorce.
The court’s journal entry of judgment granted the divorce to ap pellee; found appellee’s net worth to be $41,272; awarded appellant as a division of the property the home, valued at $13,000, the household furniture and effects located therein, and the sum of $9,500 to be paid in five annual installments; set aside $3,095 (not a part of the mentioned assets) to appellant as her separate property; and gave appellant custody of the minor child until she reached the age of eighteen, with child support set at $60 monthly.
As to appellant’s first complaint, that the judgment of the court is not supported by the evidence, we might say that no useful purpose could be gained by setting out in detail the evidence supporting plaintiff’s allegations. The record in this case is replete with evidence showing a course of conduct of the defendant towards her husband which tended to humiliate and degrade him and which could properly be characterized as extreme cruelty.
Extreme cruelty as contemplated by the divorce statute is no longer regarded as being limited to acts of physical violence. It is now generally held that any unjustifiable and long practiced course of conduct by one spouse toward the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted or threatened. Under some circumstances it may not be necessary that such conduct should continue over a long period to constitute extreme cruelty. (Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127; Stegmeir v. Stegmeir, 158 Kan. 511, 148 P. 2d 755; Davis v. Davis, 162 Kan. 701, 178 P. 2d 1015.)
In the instant case there was not only direct and corroborating testimony but also circumstantial evidence which the trial court could and did believe, that appellant’s acts deeply wounded appellee’s feelings and worried him greatly, and that the legitimate ends and objects of matrimony had been utterly destroyed thereby. The testimony justified granting the divorce to appellee. We need not discuss each detailed fact for the purpose of determining whether it falls precisely within the legal contemplation of gross neglect of duty or extreme cruelty. Some of the facts tend to support both grounds.
Appellant contends that resumption of the marriage relations of the parties in 1931 and again in 1947 constitutes condonation of all previous acts of cruelty and neglect of duty on the part of appellant. It may be noted that when appellee left his home on the mentioned dates, no action for divorce was filed.
The effect of voluntary cohabitation after acts of cruelty on the part of one spouse as evidencing condonation of the offense by the other stands upon a different basis than cohabitation after knowledge of adultery on the part of one spouse. Cruelty as a ground for divorce is generally a course of conduct rather than a single act. The rule is that sexual cohabitation after acts of cruelty cannot be considered as condonation in the sense in which it would be after an act of adultery. The effort to endure unkind treatment as long as possible is commendable; and it is obviously a just rule that the patient endurance by one spouse of the continuing ill treatment of the other should never be allowed to weaken his or her right to relief. (17 Am. Jur. 257.)
Condonation of the violation of marital duties and obligations is conditioned, on the future good conduct of the offending spouse, and a subsequent offense on his or her part revokes or nullifies the condonation and revives the original offense as a ground for divorce. In other words, condonation ceases to be a defense to a divorce suit where the condoned offense is repeated. Condonation, if proved, implies the condition that kindness shall supplant the cruelty complained of. It is well established that subsequent conjugal unkindness will avoid condonation, even though such unkindness is less than extreme cruelty, and insufficient of itself as a ground for divorce. (Hickman v. Hickman, 188 Ia. 697, 176 N. W. 698, 14 A. L. R. 929; 17 Am. Jur. 258, sec. 213; 27 C. J. S. 616, 617; see also Anno. 14 A. L. R. 931 to 944.)
It is next urged that the property award to appellant is not supported by the evidence. Pertinent provisions of G. S. 1949, 60-1511 read as follows:
“If the divorce shall be granted by reason of the fault or aggression of the wife, the court shall order restoration to her of the whole of her property, lands, tenements and hereditaments owned by her before, or by her separately acquired after the marriage . . . also the court may award the wife such share of her husband’s real and personal property, or both, as to the court may appear just and reasonable.”
It will be noted from the quoted statute that where the husband is granted a divorce for the fault of the wife in a divorce action, the trial court is clearly vested with power, after setting aside to her her separately acquired property, to make such a division of the property, real and personal, between the parties as may appear to be just and reasonable.
This court has interpreted the above statute in a number of cases. In Hayn v. Hayn, supra, we said:
“Under the provisions of G. S. 1945 Supp., 60-1511, it rests in the sound discretion of the trial court whether it will award any portion of the husband’s separate property to the wife when the divorce is granted to the husband by reason of the fault or aggression of the wife.”
The rule in this jurisdiction has always been that a division of property made by the trial court in a divorce action will not be disturbed on appellate review unless it is clearly made to appear the trial court’s action in making that division amounted to an abuse of discretion. (Harris v. Harris, 169 Kan. 339, 219 P. 2d 454; Walno v. Walno, 164 Kan. 620, 192 P. 2d 165, and cases therein cited.) We are unable to find anything in the record which would justify a holding that the trial court abused its discretion.
It is next urged that the allowance of $60 per month for the support of the seventeen year-old minor daughter, a high school student, was inadequate. G. S. 1949, 60-1510 provides:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.”
In view of the foregoing statute, it is apparent that the court’s jurisdiction over minor children, including orders for their support, is a continuing jurisdiction. Its orders may and should be changed from time to time as conditions require. We cannot say that $60 per month under the circumstances of this case was not an adequate amount for the support of the minor daughter at the time of the trial of this action. If times and conditions should change to such an extent that the amount appears to be inadequate, the appellant may seek redress on proper application in the court below to alter such order.
It is next urged the trial court erred in overruling appellant’s motion for a new trial. The argument on this point is a repetition in a large measure of points heretofore covered, and needs no further comment.
We have carefully examined the record in this case on all points covered by appellant’s assignments of error, and find nothing to warrant a reversal of the judgment of the trial court. The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action by resident taxpayers of a rural high school district to enjoin the issuance of bonds by the district, as more fully set out hereafter.
As the result of motions directed at the original petition, the plaintiffs filed their amended petition, which so far as need be mentioned, alleged that the rural high school district and its officers, hereafter referred to generally as the defendants, on March 20, 1950, held a purported election for the purpose of voting bonds of the district in the sum of $95,000 for certain improvements, and thereafter adopted a resolution declaring the proposition submitted to have carried and ordering the bonds issued; that the election was irregularly and illegally called and held for a number of reasons including that the notices of the election did not inform the electors of the district of the nature and extent of the improvements to be made and that the improvements to be made were to cost a sum greater than the amount of the bonds; that the election was not called and held for the purpose of voting bonds to equip, enlarge, remodel and repair an existing schoolhouse; that certain ballots were illegally cast and that three named persons who were not legal residents of the district were permitted to vote and voted in favor of the bonds and that a majority of the legal electors voting failed to vote for the issuance of the bonds; that notwithstanding, the defendants were about to issue the bonds and would do so unless enjoined and thus create an illegal assessment and tax against the property of the plaintiffs and others within the district and that plaintiffs had no adequate remedy at law.
The defendants answered, denying generally, but admitting that plaintiffs were residents of the district and that an election had been held and alleging that the election was legal and valid in all respects and that the only persons who voted at the election were legal residents of the district. It was also alleged that plaintiffs could not complain regarding the votes of any persons whose ballots were illegally cast for the reason that none of the persons voting were challenged and there was no way to determine how they voted. Other allegations of the answer need no present notice, nor does the plaintiffs’ reply.
The cause was tried by Honorable George L. Allison as judge pro tem. The record does not disclose affirmatively that either of the parties requested findings of fact and conclusions of law, but after both parties had rested the trial court directed that the parties file their requested findings and conclusions and the abstract discloses that defendants complied. Later and on September 23, 1950, the court disposed of the case and announced it had not had time to prepare findings of fact and conclusions of law but it did state the election was illegal and void. As the result of colloquy between court and counsel the trial court stated its conclusions as to the ultimate facts. The parties were unable to agree on a journal entry. On October 16, 1950, and after the term for which Judge Allison had been appointed as judge pro tem had expired, he signed a journal entry of judgment and prepared findings of fact and conclusions of law, all of which were filed the next day. In due time the defendants filed their motion to have stricken the findings of fact and conclusions of law and also references to the facts found as set forth in the journal entry, a motion for judgment on the competent evidence and a motion for a new trial. These motions were all heard by the Honorable Donald C. Magaw, then acting as judge pro tem, and were denied. Thereafter defendants perfected an appeal to this court, specifying error in fourteen particulars, some of which overlap others, but all of which are treated herein although not in the order presented.
Appellants complain the trial court erred in not making written findings of fact and conclusions of law on September 23, 1950. The record does not disclose that either party made such a request. The trial court did direct the parties to submit their requested findings. When the trial court made findings of fact on September 23, 1950, by oral statement, no one objected. The statements were transcribed and are set forth in the abstract. While appellants are not satisfied therewith, that they were made is not disputed. No error appears on this account.
Appellants also complain that the term of Judge Allison had expired and that he was without power to make the findings and conclusions filed October 17, 1950. We do not think it necessary under the circumstances to discuss the question of his power. The findings of fact there included are substantially those made on September 23, 1950, but in our consideration of the appeal we shall restrict our examination to the findings as first made.
Generally, consideration of the remaining specifications requires a short review of the evidence. We recognize there was dispute in some of the testimony, but in view of the findings of fact and the judgment rendered we are concerned only with evidence that supports the findings and judgment.
On January 26, 1950, the school board of the defendant district held a joint meeting with the school board of common school district R-5, the territorial limits of which included some lands common to both districts. As disclosed by the minutes of the defendant district the meeting was between the two boards and an agreement was reached “to go ahead with the school improving program for the Hunter School System.” At this meeting, there was discussed the question of building an addition to the rural high school building to provide a gymnasium for the high school and three or four class rooms for the common school and a large picture, concededly showing an architects conception of what the improvement would look like was shown and smaller copies were distributed to patrons present, and there was some discussion that the completed combined projects would cost $150,000, and that if it was built the rural high school district would pay $95,000 and the common school district would pay $55,000. Following that meeting the common school district called an election to vote $55,000 of bonds, an election with which we are not presently concerned. On February 14, 1950, the defendant district school board at a special meeting adopted a resolution that it was necessary to equip, enlarge, remodel, repair and improve the existing schoolhouse by “Constructing and equipping a gymnasium adjoining the present High School Building”; that it was necessary to issue bonds in the amount of $95,000, and that a special election should be held on March 20, 1950, to vote on the proposition, as stated in the resolution and as later stated in the ballots used, viz:
“Shall the following be adopted?
“Proposition to issue bonds of Jt. Rural High School District No. 1 Mitchell and Lincoln Counties, Kansas in the amount of $95,000.00 to pay the cost of equipping, enlarging, remodeling, repairing, and improving the existing school house at Hunter in said district.
“To vote. . . .”
At the election a total of 345 ballots were cast. Of this total two' were rejected as not complying with the statute. Of the remaining 343, it was found by the election board that 173 were in favor of the proposition and 170 were against it. There was evidence also that two persons were furnished ballots in the street in front of the polling place, which were carried into the polling place and deposited; that three persons who voted in favor of the proposition were nonresidents of the district and not legally qualified electors of the district, and that the two ballots which were rejected by the election board had the word “No” written outside the square in which a cross had been marked.
Appellants contend that the trial court erred in admitting in evidence testimony as to the agreement of the two boards to build a joint building, their contention, in substance, being that there was no allegation in the petition that warranted it. In our opinion this evidence was relevant and material under the allegation that the notices of election were irregular and illegal and did not inform the electorate of the nature, extent and cost of the improvement. Complaint is also made of the so-called voluntary testimony on cross-examination of plaintiffs’ witness, an assessor, that the father of one voter, later found to be a nonresident of the district, had stated his son did not live with him. Appellants’ motion to strike on the ground the statement was hearsay was overruled. Assuming the statement should have been stricken, there was other evidence of which no complaint is made, as to the nonresidence and the error, if any, was not prejudicial.
Appellants’ contention that the trial court erred in not sustaining their demurrer to the plaintiffs’ evidence covers a number of matters. It is contended that the ballots on which the voter wrote the word “No” beside the square in which a cross had been made were such that they should not have been counted. We need not discuss the correctness of this contention for reasons later stated. Appellants review their argument that proof as to a joint building was inadmissible, and that absent that proof the plaintiffs failed to prove a cause of action. We have previously held that testimony was proper. Appellants further contend that the proof was insufficient to show that three persons who voted were nonresidents of the district. As to this contention we find it somewhat difficult to know exactly what the testimony shows. There is no showing of the boundaries of the school district, nor how much territory of the district did or did not he in a certain named township. Two persons were said to live in the named township but in what part is not shown. We gather that the school district had no territory within that township. These two persons made statements they voted for the bonds. The other witness was said to live in another county but how he may have voted was not shown. The matter of counting votes is later treated. We think however it may not be said the trial court erred in ruling on their demurrer for the reasons asserted by the appellants.
Appellants further contend the trial court erred in its findings of fact. While the complaint covers others matters, determination of this appeal may rest on either of two grounds. If it be held the evidence supports the trial court’s finding that the defendant school district and its official board contemplated joining with the local common school district in an improvement to the rural high school building that would result in rooms for the common school, all to be erected at a proposed cost of $150,000 and to pay the same the rural high school district would issue bonds of $95,000 and the common school district would issue bonds of $55,000, that of itself disposes of this appeal and other findings become immaterial. Although appellants complain of the facts found, and direct attention to testimony tending to prove the contrary, we are of the opinion that the testimony supports the finding.
Concededly, the defendants were proceeding under G. S. 1949, 72-2016, which authorizes any rural high school district, or common school district, upon compliance with its provisions to adopt a resolution of necessity therefor and to issue bonds to raise funds to be used to pay the cost of equipping, enlarging, remodeling, repairing and improving an existing schoolhouse, provided the question shall have been submitted to the qualified electors of the district and a majority of all the qualified electors voting on the proposition shall have declared by their ballots in favor of the issuance. Absent other matters, it may be said that the proposition as stated in the board’s resolution and on the ballots voted was unambiguous. On the other hand, the evidence and findings disclose that the rural high school board expected to co-operate with the common school board and to make improvements to the rural high school building that would be for the benefits of both districts and would cost $150,-000, of which the defendant district would pay $95,000. There is no contention made that such a result, which might have been accomplished under G. S. 1949, 72-317, is or was being attempted here. While it would perhaps be true that an elector who had attended the joint meeting of the two school boards would have learned of the plan, he would have learned of it through that meeting and not from any language in the resolution calling the bond election, the notice of the election or the proposition as stated on the ballots. An-elector who did not attend the meeting or did not otherwise learn of the plan would never discover from the proposition as stated in the resolution, election notice or ballot, just what the school board actually proposed to do.
The general question presented has been treated on a number of occasions by this court in cases arising under the statute presently involved and under others of similar character, and while the facts of each case vary in particulars, it is clear from each case that election notices and ballots must clearly inform the voters as to the question submitted; that although the proposition may be stated in unequivocal terms, it must be informative of the whole and not of a part only of the proposed improvement, and of the funds applicable to the payment and the amount of bonds to be issued therefor. See Board of Education v. Powers, 142 Kan. 664, 51 P. 2d 421; Henson v. School District, 150 Kan. 610, 95 P. 2d 346; Byer v. Rural High School Dist. No. 4, 169 Kan. 351, 219 P. 2d 382, and cases cited therein.
We have examined other complaints under different headings pertaining to proceedings before Judge Allison but they have been answered by our determination of the issues as heretofore treated and require no further discussion. Under separate headings, appellants complain of rulings by Judge Magaw on their post trial motions. The burden of these complaints is that there was error in the pretrial rulings and judgment, and that their post trial motions should have been allowed. We discern no error in the rulings on such motions.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
Leathie P. Crawford sought to recover from the Bankers’ Union of the World. Its demurrer to her petition was overruled. Did the court err in so doing ? The material portions of her petition are substantially as follows: The National Aid Association is a fraternal insurance or beneficiary corporation, organized under the laws of Kansas ; W. A. S. Bird is receiver of this association, and as such receiver has the custody, control and possession of all its records and assets; the Bankers’ Union of the World is a fraternal insurance corporation organized under the laws of the state of Nebraska, and doing business under the laws of the states of Nebraska and Kansas ; William H. Crawford, who was the husband of the plaintiff, joined the National Aid Association, and as a member thereof received a beneficiary certificate containing stipulations as follows :
“This certificate of membership witnesseth, that in consideration of the representations made by William H. Crawford in his application for membership in said National Aid Association, which is hereby made a part of this contract, said member further complying with the by-laws, rules and regulations governing said National Aid Association, then and in that case the said National Aid Association hereby promises and binds itself that, upon satisfactory evidence, in accordance with its by-laws, of the death of William H. Crawford, the person named and described in the application for which this certificate is issued, to pay to his wife, Leathie P. Crawford, the beneficiary mentioned in said application, the sum of $1000, or such a sum as shall be derived from the benefit fund upon an assessment made,for said death on all its members, as provided in its by-laws, less the amount which has been paid to said member on account of loss of eye or limb or the old-age benefit; and said sum, not to exceed the amount of $1000, shall be received by said beneficiary in full of all claims against the said National Aid Association by virtue of this certificate.”
It was further alleged that the said William H. Crawford died in good standing in said National Aid Association on the 5th of October, 1901, the plaintiff being his beneficiary named in said certificate; that due and timely proof of his death was made; that afterward, no amount having been paid on the certificate, the officers of the National Aid Association became convinced that on account of the low rate of assessment and the slow growth of the National Aid Association, for the protection of its membership and to guarantee the payment of its death losses, it was necessary to combine with some other fraternal order whose rate of assessment was higher, ,and whose growth was more rapid ; that it could not continue in business with its low rate of assessment and meet its death losses promptly; that it was necessary for the protection of its members to consolidate with some growing order that was larger and had a higher rate of assessment; that the Bankers’ Union of the World presented to the officers of the National Aid Association a proposition to consolidate the two orders; that this proposition was accepted by the latter, and a formal agreement entered into between these two associations, whereby the Bankers’ Union undertook to pay certain liabilities for death losses which had accrued under the beneficiary certificates issued by the National Aid Association, of which that due to the plaintiff was one. The writing containing this agreement, so far as it refers to this matter, was evidenced by the memorandum of date October 12,. 1901, and is as follows :
“Liabilities of which the National Aid has official notice, not exceeding $27,330 uncontested, and $7000 contested, to be assumed and agreed to be paid by the Bankers’ Union of the World and Spinney” (its president), “according to the constitution and bylaws of the National Aid.”
Afterward this memorandum was put in a more formal shape and this contract of assumption appears therein as follows :
“5. The said E. C. Spinney and the Bankers’ Union of the World, upon the consummation of said consolidation and as a part of said consolidation, shall agree to assume and agree to pay all the just and lawful claims for death losses against the said association of which the said association has official notice, not exceeding $27,380 uncontested liabilities and $7000 contested liabilities. By the term ‘uncontested liabilities’ is meant such liabilities as are not known to be spurious or fraudulent, but the said The Bankers’ Union of the World and E. C. Spinney reserve the right to contest any of said liabilities for any reasons which may be deemed sufficient by competent and reliable counsel. The said officers of the said association, or either of them, shall preclude the said E. C. Spinney and the Bankers’ Union of the World from their right of contest as aforesaid.
“By the term ‘contested liabilities’ is meant such claims against said association as the officers thereof may deem to be and have classified as spurious and illegal, and such claims shall not be deemed to be liabilities of said association until established to be such by judgment of court. Said liabilities to be assumed and paid by said E. C. Spinney and the said Bankers’ Union of the World according to the constitution and by-laws of the National Aid Association.”
This contract provided that the general officers of the National Aid Association should do all they could to secure a transfer of the management of that association to the Bankers’ Union, and to accomplish the same should resign from their respective positions, and procure persons selected by the Bankers’ Union to be elected officers of the National Aid Association; that they should devote their time until the 1st of January, 1903, to the consummation of such consolidation, by procuring members of the National Aid Association to become members of the Bankers’ Union, and for their services they were to receive the sum of $2500, if consolidation should be consummated, and a less sum if through no fault of theirs it should not be; that they should receive the further sum of $10,000 which was evidenced by notes given, and payable at intervals commencing on the 1st of November, 1901; that when consolidation should be accomplished, the National Aid Association should turn over to the combined management all the furniture and supplies owned by it, and $1300 which was then on deposit to its credit.
The petition further alleged that all of the conditions of this agreement were complied with by both parties thereto, the National Aid Association officers resigning their offices and procuring the selection of officers indicated by the Bankers’ Union to fill the same, and all of the business of the former to be placed under the control of officers so selected by the Bankers’ Union, which paid to the retiring officers the sum of $2500 as agreed ; that by reason of such consolidation the Bankers’ Union obtained an increase in its membership of about 4000, who paid into the treasury the sum of $4000 per month; that this plan and its consummation received the approval of the insurance commissioner of the state of Kansas.
The demurrer contained several grounds, the most meritorious ones being that the agreement counted upon was ultra vires as to both associations, and that the petition did not state facts sufficient to constitute a cause of action.
It will be observed that the plaintiff below sought to recover against the Bankers’ Union, not by virtue of a contract which it had made with her or her husband, but by virtue of a contract' which had been made with the National Aid Association, and the fulfillment of which, as was claimed, had been assumed by the Bankers’ Union, so that the questions, as logically presented, are : (1) Has the agreement entered into by these associations any force or binding effect upon the Bankers’ Union, so far as it requires a payment to Mrs. Crawford? Or, put in another form, was the agreement, so far as it concerned her, within the power of these associations, and is the Bankers’ Union bound to her thereby? (2) If this agreement is within the power of the Bankers’ Union, so far as Mrs. Crawford is concerned, what was its extent, and what liability was incurred by it thereby?
Taking up the question of power, we suggest that the statutes of Nebraska are not pleaded; hence the presumption is that they are the same as found in Kansas. That they are so in fact is admitted by the attorneys for both parties. We need take small space in the discussion of the universally recognized rule that a corporation has only such power as is conferred upon it by its charter, either expressly or by implication, to enable it to carry out the objects of its creation, and that the exercise of powers outside and beyond these is an act ultra vires and not binding upon the corporation. The implication authorizing the exercise of a power must be one necessarily arising from a granted power, as distinguished from what might be convenient or desirable. It is not sufficient to authorize a corporation to act that no limitation is found in the law forbidding the act. The right to act must be conferred expressly or by necessary implication, or it does not exist.
We have searched the statute in vain to find adequate warrant therein for a transaction such as is stated in plaintiff’s petition. It is claimed that section 3575 of the General Statutes of 1901, relating to fraternal beneficiary societies, which authorizes such societies to make and enforce contracts in relation to their business, implies the right to make the contract in question. It is suggested that the increase of members is the chief object of the existence of these beneficiary associations ; hence an agreement made to promote that end would be one in relation to the business of the corporation. While, of course, no corporation, much less one of this character, could exist without persons connected therewith, nor could one like this long exist without a constant accession to its membership, it surely is a misuse of terms to say that the obtaining of, members is the business of the corporation. Members enable it to pursue its business, but the obtaining of members is not its business. Its business is defined in the statute to be the making of provision for the payment of benefits in case of death, sickness, or temporary disability, and this business must be carried on for the sole benefit of its members and their beneficiaries. For the purpose of carrying on this business, such associations are authorized by the statute to create a fund “from which the expenses of such association shall be defrayed,” which “shall be derived from assessments, premiums or dues from its members, and interest accumulations thereon.” Thus it appears clearly that these associations are to be administered for the sole benefit of their members and their beneficiaries, by means of assessments and dues collected from such members ; that is, that only members may be called upon to contribute, and only they or their beneficiaries may receive indemnity.
These associations are not permitted to go out and engage generally in the business of furnishing -indemnity. Their distinct characteristics and charter life would be destroyed in so doing. The agreement counted upon in the case at bar contemplates the payment of money to one not a member of the Bankers’ Union from moneys not received from the association of which plaintiff is not a beneficiary. Such a transaction is wholly outside the letter and spirit of the charter act and in excess of any power conferred upon file association; the making and procuring of it is therefore ultra vires and not to be enforced.
The contract upon which plaintiff counts, as she claims it to be, is entirely different from that which she had with the National Aid Association. That was one to pay the proceeds of one assessment, up to $1000; this is to pay $1000 absolutely. It is, however, granted by the defendant in error that, while the Bankers’ Union would not be permitted to collect money from an assessment upon its members for the purpose of paying the death loss of one who had never been a member, yet it is competent for it to pay this death loss out of the expense fund which the association is authorized to accumulate; that the obtaining of members of any association costs approximately ten dollars apiece, and that by this arrangement a large number of members were added without expense, so that the payment of this claim, which is in fact a mortuary one, might be made out of the expense fund in lieu of paying a canvasser or deputy for accomplishing the same result. We are not disposed to give this suggestion serious consideration. To permit that to be accomplished indirectly which cannot be done directly is to encourage indirect and reprehensible 'means rather than open and fair dealing. Besides this, we find no allegations in the petition upon which to base this claim.
It is further suggested that, even though this contract be ultra vires, still the Bankers’ Union is estopped from so pleading. Authorities are cited supporting the proposition that a corporation may be es-topped from pleading the invalidity of its contracts as against one who has made part performance of such contract. We are free to grant the correctness bf the principle, but find no opportunity fbr its appli cation here, because there has been no part performance. There was no consolidation or merger; there could be none under the statute. No authority therefor is given. That 4000 of the members of the National Aid Association chose to become members of the-Bankers’ Union constituted no part performance on the part of the former association. It could not transfer a single member. Each individual acted fqr himself. The petition contains no -allegation that any of the property of the National Aid Association ever came to the possession of the Bankers’ Union. On the contrary] it does allege that all of the records and assets of the National Aid Association are in the hands of the receiver, Bird. Had the assets of the National Aid Association gone into the hands of the Bankers’ Union, such assets, perhaps, in a proper action, could have been subjected to plaintiff’s claim, but we do not see how an estoppel by reason thereof could be invoked in favor of Mrs. Crawford. She never has paid anything for or lost anything by reason of the agreement upon which she counts. We-must hold that the agreement which is soúght to be enforced is ultra vires, and that the Bankers’ Union is not estopped so to assert it.
The case of Twiss v. Guaranty Life Ass’n, 87 Iowa, 733, 55 N. W. 8, 43 Am. St. Rep. 418, was very like the one at bar. The court, discussing the questions of ulra vires and estoppel, used the following language (p.736) :
“That the making of the contract was in excess of the power of the appellant there should be no question. We need not set out the articles of incorporation or the by-laws. It is enough to say that the contract, so far as it attempts to bind the appellant, is contrary to the whole scope and purpose of the corporation. The payment of these losses would be a diversion of trust funds to' other objects than those authorized by the charter, and would be a crime. Code, section 1072. Both of these companies were organized upon the assessment plan. The assessments were made quarterly, and a fixed amount was required to be paid. A certain amount was set aside for an expense fund, and the remainder was designated as the mortuary fund. The articles of the association explicitly provide as to the disposition to be made of these several funds. There is not one word in the whole record which, by the remotest implication can be construed as authorizing the secretary, or even the board of directors, to use any part of the proceeds of these quarterly payments for such" a purpose as paying the death losses of any other insurance company. It is unnecessary to further discuss this question. It appears to us that the undertaking to pay the losses of the Guaranty company is plainly in excess of the power of the appellant or any o.f its officers. The facts of the case bring it within the rules announced in Lucas v. White Line Transfer Co., 70 Iowa 542 [30 N. W. 771, 59 Am. Rep. 449] ; Davis v. Old Colony Railway Co., 131 Mass. 258 [41 Am. Rep. 221]. And see, also, 2 Morawetz on Private Corporations, sections 580, 581, 591, 607, 609.
“But it is claimed in behalf of the appellee that the contract is executed, and that the appellant is estopped from questioning its validity. As we have said, where an ,ultra vires contract is made and performed on one side, the other party cannot be permitted to enjoy the benefits received, but will be required in a proper action to account; in other words, the doctrine of a want of power to contract cannot be invoked to aid a party to perpetrate wrong and injustice. But this case presents no-such features. It is conceded that the Guarantee company was bankrupt when the contract in question was made. Complaint had been made to the state auditor that it was not paying its death losses promptly, and it was unable to obtain a certificate authorizing it to continue in business. It is said by counsel for the appellee, in argument, that for.the payment of these death losses the Guaranty-had no means whatsoever, except its annual premiums, payable in quarterly instalments. It had no certificate authorizing it to do business after March, 1889. The death losses had been such as to require the proceeds of the mortuary calls to meet the claim, and, in addition, had used up the reserve fund. It was in this condition when the insured, David M. Twiss, died, and the claim of the plaintiff accrued.
“ It is urged with apparent confidence that, as there were some 567 members of the Guaranty company when it failed, the appellant should be required to pay its death losses upon the ground that by the contract it acquired some 400 new members. We have already said that the appellant was not authorized to buy members in this way and on any such terms. Let us see whether there is any ground for the alleged estoppel. If there is any reason for such a claim it must be because the appellant, by seeking a transfer of the membership, put it out of the power of the plaintiff to compel payment by the Guaranty company. The wrong and injury to the plaintiff, if any, consists in taking away the membership, so that the members did not pay their quarterly dues to the Guaranty company, by the payment of which the plaintiff would have received the amount due on the policy. It appears to us that this is a most unwarranted assumption. It is based upon the theory that, if the contract had not been made, the 567 members would have continued to pay quarterly instalments to the Guaranty company until all of the death claims were satisfied and all other claims paid. That this would have occurred is not only not probable, but highly improbable. - Members of such organizations are not more likely to pay money for nothing than other people. The fact is, the record shows beyond all question, that if the contract had not been made between the two companies the plaintiff’s claim was absolutely worthless. That the position of the plaintiff was in any manner changed to her prejudice by the contract not only does not appear, but the face of the transaction shows that it was not.”
Defendant in error insists that this case is not authority here, as it proceeds' upon the assumption of antecedent bankruptcy of the absorbed association. We think there is no fair ground for drawing this distinction. It appears that the National Aid Association had forty-four uncontested and unpaid losses, amounting to $44,350, and nine contested ones, amounting to $7000, at the time of the making of this agreement; and, in the language of the petition, the officers of the association had then “become convinced that on account of the low rate of assessment and the slow growth, . . . for the protection of its membership and to guarantee the payment of its death losses, it was necessary to combine with some other fraternal order; that it could not continue business and meet its death losses promptly.” If this does not plead bankruptcy it pleads what is equivalent; for an association of this sort to declare that it could not meet its death losses promptly was to announce its death. (Home Friendly Society v. Tyler, 9 Penn. Co. Ct. Rep. 617 ; Borgraefe v. Knights of Honor, 26 Mo. App. 218, 223.)
Taking up the second question propounded above, and admitting that the agreement is within the power of the Bankers’ Union to make, what would be Mrs. Crawford’s right thereunder ? It will be noted that the beneficiary certificate which is the basis of her claim does not provide for the absolute payment of the sum of $1000, but for only so much of it, up to that amount, as should be derived from an assessment made upon the members of the National Aid Association as provided in its by-laws. These by-laws are not pleaded, but we shall assume, however, that they provide for an assessment upon all of the members of the association at the time of the death of the insured ; so that all that Mrs. Crawford was entitled to thereunder was to have this assessment made, and to receive the proceeds of it up to the amount of $1000. The liability which the Bankers’ Union assumed was that the provisions of this beneficiary certificate should be carried out according to the constitution and bylaws of the National Aid Association. Hence, at the very most, Mrs. Crawford would have only the right to have as assessment made upon the members of the National Aid Association and to. receive the proceeds of such assessment up to the amount of her certificate. Beyond any question , this was an agreement ultra vires, for the Bankers’ Union could not make an assessment upon, the members of the National Aid Association. Mrs. Crawford has yet, so far as it now appears, all the rights she ever had under this certificate. She is entitled to have the officers make this assessment for her benefit and to receive its proceeds. We are fully persuaded that the agreement counted upon was beyond the power of the Bankers’ Union to make, and that the same conferred no rights whatever upon Mrs. Crawford.
The judgment of the court below will be reversed, with direction to sustain the demurrer to the petition.
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover damages for personal injuries alleged to have been sustained as a result of an intersection collision between two automobiles driven by plaintiff and defendant. Defendant’s demurrer to plaintiff’s evidence was sustained and judgment entered for defendant. Plaintiff appeals, charging error of the court in sustaining defendant’s demurrer and in rendering judgment for defendant.
Plaintiff’s evidence in support of allegations contained in his amended petition may be summarized as follows: Plaintiff and a friend were, on the morning of August 10, 1948, returning from a business trip to Newton in Plaintiff’s father’s car, a 1937 Ford. They had traveled south from Newton on highway No. 81, turned west on an asphalt surfaced highway on the county line, leading directly to the town of Sedgwick, in the vicinity of which plaintiff lived. One mile east of Sedgwick this east and west asphalt road is intersected by a north and south gravel township road, both of which are about twenty feet in width. There are no stop signs at the intersection on either highway. Heavy hedge was growing on the north edge of the blacktop county highway east from the intersection and along the east side of the gravel township road north of the intersection. The hedge along the edge of both roads had been trimmed back sixty feet from the intersection. This hedge grew on top of an embankment on the north side of the east-west road, and heavy and tall weeds were growing on the embankment extending from the end of the trimmed hedge to the intersection. Plaintiff was driving west on the county line blacktop highway thirty-five to forty miles per hour; when he reached a point about 200 feet away from the intersection in question, he decreased his speed to thirty miles per hour; having lived in that vicinity for some time, he knew the view of the county highway to the north was obstructed by an embankment, heavy hedge and tall weeds growing along the east edge of the township road north of the county road and along the north edge of the county road. Plaintiff had a clear view to the south and saw there were no automobiles approaching from that direction; he looked northward and could see no automobiles approaching from that direction; he continued looking northward and could see no cars until he had entered the in tersection, when he saw defendant’s automobile coming from the north about twenty-five feet from the intersection. Plaintiff immediately applied his brakes and swerved southward, but defendant without slackening the speed of his automobile drove straight ahead into the intersection and into the middle of the right side of plaintiff’s automobile, the collision occurring in the west half of the intersection; plaintiff’s car was overturned and thrown into the ditch at the southwest corner of the intersection, about sixty-five feet from the point of impact, and defendant’s Buick was spun around and came to a rest about twenty-four feet from the point of impact, headed in a northwesterly direction.
Kenneth Swindler, riding with plaintiff at the time of the collision, testified on behalf of plaintiff that he saw Mr. Cadle, the defendant, at the intersection after the accident and heard him twice say to plaintiff that “he just didn’t see us”. Plaintiff’s injuries sustained by reason of the collision will not be narrated as such would serve no useful purpose in determining the issues involved herein.
The following statute was in force at the time of the accident: (G. S. 1949, 8-550 (a).)
“The driver of a vehicle approaching an intersection shall yield tire right of way to a vehicle which has entered the intersection from a different highway.”
As grounds for his demurrer, defendant contends plaintiff’s evidence fails to prove a cause of action and shows plaintiff to have been guilty of such contributory negligence as would bar recovery.
We first consider defendant’s demurrer to plaintiff’s evidence. Was there any substantial evidence to sustain plaintiff’s claim? In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true; shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff; and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination. And if, so considered, there is any evidence which sustains the plaintiff’s case, the demurrer should be overruled. (McCracken v. Stewart, 170 Kan. 129, 223 P. 2d 963; Hukle v. Kimble, 169 Kan. 438, 219 P. 2d 434; Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538; Harral v. Kent Corporation, 168 Kan. 322, 212 P. 2d 356.)
Guided by these well-established rules of law, upon a fair survey of the record narrated above, we think the trial court was in error in sustaining the demurrer of defendant to plaintiff’s evidence. From the testimony it is clear that plaintiff entered the intersection from the east when defendant was twenty-five feet north of the intersection, and that defendant, without slackening the speed of his car and apparently without looking — for by looking he could have seen plaintiff’s car in the intersection — drove into the intersection without yielding the right of way and struck plaintiff’s automobile. Under the evidence the jury might well have found such acts of defendant to be the proximate cause of the injury.
Was plaintiff guilty of contributory negligence so as to bar his recovery? Defendant concedes that the rule to be applied in testing the court’s ruling on defendant’s demurrer to plaintiff’s evidence is correctly stated in Hukle v. Kimble, supra: (p. 444)
“In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.”
With the above rule of law in mind, defendant argues that plaintiff knew the intersection was blind from both directions and that no stop signs were present at the intersection, and that his failure to sound a warning of his approach or decrease the speed of his car under thirty miles per hour fell below the standard which might be expected of the average prudent man, especially in view of his complete familiarity and knowledge of the intersection, and that such negligence as a matter of law would preclude his recovery.
We cannot agree with defendant’s contention. One of the most recent expressions of the legal question here involved is stated in Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P. 2d 752:
“The legal questions here involved are so well settled in our law that they need not be labored. The actions were ones at common law in which plaintiffs sought damages alleged to have resulted from defendant’s negligence, and defendant ha:d pleaded contributory negligence of the plaintiffs. These are the kinds of actions in which each party is entitled to a trial by jury as a matter of right. They should not be converted into trials by the court. Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged has been established. Before the court should make such a holding the evidence should be so clear that reasonable minds, considering it, could have but one opinion, namely, that the party was negligent. In these cases we think the contributory negligence of plaintiffs was clearly a question of fact for the jury.”
To the same effect see Scheve v. Heiman, 142 Kan. 370, 47 P. 2d 70; Chapman v. Bergholt, 149 Kan. 172, 86 P. 2d 513; Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552; Marshall v. Boucher, 152 Kan. 697, 107 P. 2d 698; Deselms v. Combs, 162 Kan. 15, 174 P. 2d 107; Huggins v. Kansas Power and Light Co., 164 Kan. 27, 187 P. 2d 491; Mattfeld v. Hester, 226 Minn. 106, 32 N. W. 2d 291, 3 A. L. R. 2d 909; Thompson v. Barnette, 170 Kan. 384, 227 P. 2d 120.
In the instant case, we think the contributory negligence of plaintiff was clearly a question of fact for the jury. Moreover, plaintiff had decreased the speed of his automobile to thirty miles per hour as he entered the intersection and continued to watch to the north for any oncoming cars. When he had entered the intersection, defendant’s car was twenty-five feet to the north on a township road, and plaintiff was not bound to anticipate that with his car in the intersection defendant would, without watching or decreasing the speed of his automobile, or yielding the right of way, drive into and against plaintiff’s car. The law is well established that the operator of an automobile on a public highway may assume others using the highway will observe the laws of the road and he is not guilty of contributory negligence in such an assumption unless and until he has knowledge to the contrary. (Keir v. Trager, 134 Kan. 505, 7 P. 2d 49; Smith v. Salts, 170 Kan. 313, 224 P. 2d 1025.)
Ordinarily, where the defendant is out of sight of the driver crossing an intersection, as where defendant is behind an obstruction on the highway, and it appears to plaintiff as' a result of observation that it is safe to cross and would be but for defendant’s failure to yield the right of way, unanticipated speed, or other negligence, the question whether plaintiff was guilty of negligence is one of fact for the jury, especially where plaintiff has made a reasonable observation before crossing, and he is not guilty of contributory negligence as a matter of law for failure to make additional observations.
The question as to the reasonableness of the plaintiff’s speed, or other negligence, on entering the intersection in question, in view of the facts as related in this case, is one on which reasonable minds might reach different conclusions and a question of fact which should have been submitted to the jury.
The judgment of the lower court is reversed with directions to grant plaintiff a new trial.
Thiele, Wedell, and Price, JJ., dissent. | [
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The opinion of the court was delivered by
Wertz, J.:
This appeal is from an order of the trial court overruling appellants’ demurrer to appellee’s petition in an action to recover possession of certain real property and to quiet title thereto.
In the first cause of action the petition alleges that plaintiff is an incompetent person and that Orval Kendall has been his legal guardian since March 25, 1949; that the plaintiff has been an incompetent person since November 27, 1915, when his grandfather W. M. Walter executed a general warranty deed conveying the land in question to him; that at that time he had no legal guardian but thereafter on March 8, 1929, his mother, Ethel Kendall, was duly appointed his guardian and remained his legal guardian until her death on November 25,1948; that about the year 1932 said deed was duly delivered by the grantor to plaintiff’s then guardian, Ethel Kendall, for the use and benefit of plaintiff; that said warranty deed was thereafter lost or destroyed and so could not be attached to the petition; that the grantor W. M. Walter had, on the same date he executed the deed to plaintiff, executed other deeds identical with plaintiff’s deed except as to grantees and the descriptions of property conveyed — a copy of one of these deeds being attached to the petition; that upon delivery of the deed to plaintiff’s then guardian as alleged, plaintiff acquired fee simple title to the land in question, and that title has not since been conveyed by him or anyone else on his behalf; that on June 20, 1944, Ethel Kendall in her individual capacity executed a deed covering the land in question to the defendants, a copy of this deed also being attached to the petition; and defendants recorded their deed on June 4, 1949. The petition alleges further that such deed was a nullity because Ethel Kendall, though in possession of the described land, held it for the use and benefit of plaintiff as his legal guardian, and had no right therein in her individual capacity; that such deed constitutes a cloud on plaintiff’s title, and that the same should be set aside.
In his second cause of action, plaintiff asks for immediate possession of the land in question, wrongfully withheld from him by the defendants.
In the third cause of action, plaintiff asks that his title be quieted to the land in controversy.
Defendants’ demurrer to plaintiff’s petition specified the following grounds: (1) That the court has no jurisdiction of the person of the defendant or the subject of the action; (2) That the petition does not state facts sufficient to constitute a cause of action; (3) That there is a misjoinder of parties defendant in the first, second and third causes of action; and (4) That said pretended causes of action alleged in plaintiff’s petition are barred by the statutes of limitations.
Defendant’s first, second and fourth grounds of demurrer go to the jurisdiction of the trial court to hear and determine plaintiff’s cause of action, and contend that inasmuch as the petition shows that the property described therein came into their possession by a warranty deed from Ethel Kendall, plaintiff’s claim if he has one, is against the estate of Ethel Kendall, and therefore, since the trial court would have no original jurisdiction of a claim against an estate (G. S. 1949, 59-2239) and since the time within which such a claim could be filed against the estate of Ethel Kendall has passed, the demurrer should have been sustained.
Plaintiff makes no claim that Ethel Kendall, as guardian or otherwise, held this land in trust for plaintiff. Plaintiff claims title to the land by virtue of a deed from his Grandfather Walter executed November 27, 1915, and delivered to plaintiff’s then guardian, Ethel Kendall, in 1932. The guardian was not named as a grantee in the deed from W. M. Walter, either in her individual capacity or as guardian or trustee for plaintiff. It is not claimed that the guardian was.anything more than a mere custodian of the warranty deed delivered to her in 1932 for the use and benefit of the plaintiff. Talcing the allegations of the petition as true for the purpose of testing the sufficiency of the demurrer, we have this situation: Plaintiff owned the land described in the petition, having acquired it by warranty deed from his grandfather, and neither plaintiff nor anyone on his behalf has ever disposed of his interest in the land. This is simply a suit by plaintiff, claiming that he is the owner of the real estate described and has had title thereto for approximately twenty years, against the defendants for possession, and to quiet title in plaintiff against defendants’ claim of ownership under a deed from Ethel Kendall. If the plaintiff’s position is sound and is established by the evidence, his ownership of the land in controversy will be determined, and by reason thereof defendants’ claimed title would fall because Ethel Kendall, having no title to the land, could convey nothing to defendants. In any event, there would be no liability against her estate, and none has been sought in this action.
Defendants contend that plaintiff’s action is barred by G. S. 1949, 59-2239, because he did not present a claim against the estate of Ethel Kendall within the stated nine-months period for allowance of claims. Since plaintiff does not claim title to this land as an heir of Ethel Kendall, by virtue of any contractual relationship with her, or on the theory that she held the title in trust for the plaintiff, it seems clear that this action attempts neither to take from nor add to the estate of Ethel Kendall, and as a consequence, the probate court would have no jurisdiction over the subject matter of the action. This is nothing more than an action in ejectment and to quiet title in the plaintiff as against the claim of the defendants under a deed executed by Ethel Kendall as grantor in her individual capacity attempting to convey property in which she had no interest, which deed casts a cloud upon the plaintiff’s title.
An examination of the mentioned statute and the authorities cited by defendants pertaining to the jurisdiction of the probate court in actions involving claims against an estate have no appli cation here. In the instant case the plaintiff has lost nothing through any default of his former guardian, Ethel Kendall, and was not required to proceed against her estate to recover the land in question, as she neither held title to it as guardian for plaintiff nor alienated it as such guardian.
Appellants further contend that the demurrer should have been sustained because of misjoinder of causes of action. It is noted from the record that this was not a ground set forth in their demurrer to the petition, nor was it presented to the trial court. We have repeatedly held that where it does not affirmatively appear that a question raised on appeal was presented to and determined by the trial court, this court does not consider it on review. (Anderson v. Shannon, 146 Kan. 704, 73 P. 2d 5; Lish v. Wehmeyer, 158 Kan. 339, 344, 147 P. 2d 712; Lechleitner v. Cummings, 159 Kan. 171, 152 P. 2d 843.)
In view of what has been said, the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action to enjoin defendant from obstructing an alley back of plaintiff’s property. The trial court made findings of fact and rendered judgment for plaintiffs and allowed plaintiffs damages. Defendant has appealed.
The record discloses that Madison street, a north and south street in the city of Topeka, is intersected at right angles by Third street and by Fourth street. The next street west of Madison is Monroe street. As platted there is a north and south alley through the block. The lots in the 300 block on Monroe are laid out with the long way east and west, of a width of 25 feet, and are numbered from the north. Defendant lives on lot 99. The other lots south and to Fourth street are numbered 101, 103, 105 and 107. Plaintiffs are the owners of the east 50 feet of lots 101, 103, 105 and 107, and on their property there are situated three business houses facing south on Fourth street and extending north to within about 40 feet of the south line of lot 99. They reside in one of the buildings.
On December 10, 1900, one Joseph D. Smith and wife, who were the then owners of lot 99, executed a deed to the city of Topeka for the south 10 feet of lot 99, “to be forever used as a public alley,” which deed was duly recorded. Ry an ordinance, No. 5076, published June 22, 1921, the city attempted to vacate this alley. Later by ordinance No. 5351, published March 11,1924, the city reopened the alley and repealed ordinance No. 5076. This later ordinance provided that the alley should be reopened without expense to the city, “except the city shall pay the owner of any permanent improvements erected on said alley since the vacation thereof the value of said improvements,” and provided the valuation of the improvements to be determined by appraisers appointed by the city. No such appraisers were ever appointed.
At some time in 1945 defendant purchased the north 15 feet of lot 99. That is all the land described in the deed. Her contentions in this action, shortly stated, are that when the city vacated the alley in 1921 the title to the land reverted to the then owner of the north 15 feet of lot 99 (G. S. 1949,12-506); that ordinance No. 5351, enacted in March, 1924, reopening the alley without expense to the city except the payment for permanent improvements, the valuation of such improvements to be determined by appraisers (G. S. 1949, 13-443), was void for the reason that no such appraisers were ever appointed.
Assuming defendant is correct in her construction of the effect upon the title to the alley by ordinance No. 5076, enacted in June, 1921, we think the contention that ordinance No. 5351, enacted in March, 1924, was invalid because no appraisers were appointed to ascertain the value of the improvements placed on the alley since the vacation thereof is without substantial merit for the reason that there is no evidence in the record that any permanent improvements had been erected on the alley between the dates of these two ordinances.
Sometime after defendant bought the north 15 feet of lot 99 she had a wire fence put along the south line and the front so as to enclose the 10 foot alley with her property, and used a part of it for growing of flowers and a garden. This interferes with its use by plaintiffs for hauling coal and merchandise to the rear of their business properties.
The court found plaintiffs had a legal right to maintain this action, as they have suffered and still suffer a special and pecuniary damage not suffered by the public in general. In this court there is no contention to the contrary. The court further found that the 10 foot strip was an alley of the city, and we concur in that holding.
The court gave judgment in favor of plaintiffs and against defendant for $300 damages. This consisted of the attorney’s fee plaintiffs paid their attorney. We know of no statute which authorized that allowance. At the oral argument counsel for appellees were free to state that this part of the judgment may have been erroneous. We think it was.
The result is the judgment of the trial court should be affirmed in all respects except as to the judgment for $300 damages, and as to that it should be reversed.
It is so ordered. | [
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