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The opinion of the court was delivered by
Holmes, C.J.:
This appeal by the State involves separate criminal actions filed against David Julian Green and James Arthur Smith arising out of an alleged armed robbery in Franklin County. The State appeals from a district court order dismissing the complaint and suppressing evidence in the case of David Green. This court has jurisdiction under K.S.A. 1994 Supp. 22-3602(b)(l) (appeal to Supreme Court from order dismissing a complaint). The State takes an interlocutory appeal, pursuant to K.S.A. 22-3603, from the district court’s order suppressing evidence in the case of James Smith. Upon the State’s motion, State v. Smith was transferred to the Supreme Court and consolidated with State v. Green.
The following background facts are not in dispute. On July 1, 1993, Ottawa police officers received a report that an armed robbery had just taken place at the Econo Lodge Motel in the City of Ottawa and an initial description of the getaway vehicle. Officers were directed to the Interstate 35 (1-35) area near the Econo Lodge. Officer Hawkins arrived at the motel within two minutes of receiving the report. The victims were two guests of the motel who were robbed at gunpoint in the parking lot while preparing to move their personal belongings into the motel room. Items taken from the victims included their purses and suitcases. The victims described the vehicle as a dark blue two-door, possibly a 1986 or 1987 Buick, with one black male in the back seat and two black males in the front. The victims observed the vehicle leave the scene of the robbeiy and proceed north on 1-35. They also believed a red car might have been involved but did not know its direction of travel. Officer Hawkins immediately relayed the description of the suspects and their vehicles to the other officers.
After receiving the report from Officer Hawkins, Officers Lewis and Welsh proceeded out of the city limits and drove north on 1-35 at a high rate of speed. Within seven minutes, they located a vehicle matching the description of the blue car. Prior to the officers initiating a stop, the vehicle pulled over to the side of the road and stopped. The officers stopped behind it and turned on their emergency lights for safety purposes. When one of the officers left the police car and attempted to make contact with the suspects, the vehicle sped away. The officers pursued the vehicle, and while doing so observed the occupants throwing property out the window, including, among other things, a large blue suitcase. The items thrown from the vehicle were later identified by the victims as their stolen property.
After the officers chased the vehicle approximately nine more miles, it stopped on the side of the road, and the three occupants, including Green and Smith, were arrested. The initial voluntary stop by the defendants occurred in Miami County and the subsequent stop and arrest, conducted by Ottawa police officers, took place in Johnson County. Approximately 28 minutes elapsed between the time of the initial report of the robbery and the ultimate stop arid arrest of the defendants. The vehicle was actually a 1984 two-tone blue two-door Buick. The victims were unable to identify the defendants as the robbers.
The trial court found the stop and arrest were illegal and granted motions by both defendants to suppress evidence. The court found the officers were not in fresh pursuit because they did not locate the vehicle until it was out of their jurisdiction. The court suppressed all statements and evidence seized as a result of the arrest, including the items thrown from the vehicle during the pursuit. In addition, the trial court granted a motion to dismiss the complaint against Green, holding that the complaint was improperly verified. Additional facts will be set forth as necessary in resolving the issues on appeal.
The State on appeal asserts two issues: (1) whether the trial court erred in dismissing the complaint against Green for improper verification, and (2) whether the trial court erred in suppressing the evidence in both cases based upon its finding the Ottawa police officers were not in fresh pursuit as defined by K.S.A. 1994 Supp. 22-2401a. Although Smith also filed a motion to suppress the complaint against him, the court found he had waived any objection to the complaint and denied the motion. Smith did not cross-appeal from that ruling, and the issue is not before us on appeal.
Dismissal of the Green Complaint
On July 2, 1993, David Green was charged in a properly executed and verified complaint with aggravated robbery, aggravated assault, and obstructing legal process. On July 19, 1993, the State filed an amended complaint, eliminating tire aggravated assault charge. The amended complaint stated in pertinent part:
“Laiorence M. Wright, Franklin County Attorney, of lawful age, being first duly sworn on oath, for complaint against the above shown defendant, alleges and states:
[listing of charges]
[signed by Scott Rybum]
COMPLAINANT
“Subscribed and sworn to before me this. 19th day of July 1993.
[signed by notary public]”
Later that same day, a preliminary hearing on the amended complaint was held before District Magistrate Jüdge Lariy Coursen. At the hearing, the defendant argued the amended complaint was not properly verified because, while it states Lawrence M. Wright swore on oath, it was signed by Scott Rybum. Scott Ry-bum, the prosecutor, explained that he had not noticed the error. Rybum requested that the court allow him to orally amend the complaint to replace “Lawrence M. Wright, Franklin County Attorney” with “Scott Rybum, Assistant Franklin County Attorney.”
Magistrate Coursen allowed the State to amend the complaint and bound the defendant over on count I, aggravated robbeiy. The magistrate found there was not sufficient evidence to bind the defendant over for trial on count II, obstruction of legal process. Arraignment was set for July 23, 1993.
On August 6,1993, a motion to dismiss the amended complaint was filed along with a motion to suppress evidence. Rather than correct the amended complaint by interlineation or by filing a journal entry reflecting the magistrate’s decision, the State chose to file a second amended complaint on September 1, 1993.
On October 7, 1993, a hearing was held on Green’s motion to dismiss the amended complaint as defective. In granting the defendant’s motion, the district judge found that the amended complaint was “improperly verified” and that the magistrate should have dismissed the amended complaint at the preliminary hearing. The judge apparently ignored the fact that the magistrate granted the State’s motion to amend the amended complaint and also ignored the subsequently filed second amended complaint which, in effect, memorialized the magistrate’s ruling.
K.S.A. 1994 Supp. 22-2202(8) defines a criminal complaint as “a written statement under oath of the essential facts constituting a crime.” K.S.A. 1994 Supp. 22-3201(e) provides: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
In State v. Rasch, 243 Kan. 495, 501, 758 P.2d 214 (1988), we stated:
“When the defendant and his attorney are present and permission is obtained from the judge, the State may orally amend the complaint or information any time before the verdict or finding, if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced. . . . The amendment to the complaint or information may be shown by interlineation on the complaint or information, by the filing of an amended complaint or information, or by a journal entry stating the amendment to the complaint or information.”
Although the defendant argues that the amended complaint was never verified or sworn to by anyone, there is no contention by the defendant that the notarial act on the amended complaint was invalid and no showing that it was not “subscribed and sworn to” by Scott Rybum. K.S.A. 53-503(b) states: “In taking a verification upon oath or affirmation, the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the verification is the person whose true signature is on the statement verified.” Nor is there any showing that K.S.A. 53-502(c) was not fully complied with at the time the amended complaint was “subscribed and sworn to” by Scott Ryburn. The notary public was not called to testify whether Ryburn actually swore to the amended complaint and Ryburn was not questioned on the matter.
The defendant also asserts on appeal, and the trial judge commented at the hearing, that the second amended complaint improperly included count II alleging the defendant committed the crime of “obstructing legal process.” That charge had been dismissed by the magistrate at the preliminary hearing. As the defendant was not bound over on Count II, it constitutes mere surplusage and does not invalidate the complaint. In addition, there has been no showing that the alleged defects in the amended complaint resulted in any prejudice to the rights of the defendant.
As previously pointed out, the magistrate granted the State’s motion to orally amend the amended complaint to correct the name of the person who subscribed and swore to that document. The magistrate had the authority to allow the amendment which, under our holding in Rasch, could be accomplished in several different ways.
We conclude, under the facts in this case, that upon the allowance of the State’s motion to orally amend the first amended complaint, granted by District Magistrate Coursen, the amended complaint was validated, although the State should have utilized more diligence in perfecting the record. We further conclude the filing of the second amended complaint constituted a proper method of complying with the magistrate’s decision, was consistent with our decision in Rasch, and should have been so recognized by the district judge.
The district judge erred in dismissing the aggravated robbery count against the defendant David Julian Green.
Motion to Suppress Evidence (Green and Smith)
Defendants David Green and James Smith filed motions to suppress, alleging the stop and arrest were unlawful because the officers were acting outside their jurisdiction in violation of K.S.A. 1994 Supp. 22-2401a. They argued that all statements made by die defendants following their arrest and all evidence seized from the defendants and their vehicle as a result of the arrest should be suppressed. Because the defendants’ statements and all physical evidence in the case had to be suppressed, the defendants further argued the cases should be dismissed. A hearing on defendant Green’s motion was held October 7, 1993. At a hearing on defendant Smith’s motion on October 15, 1993, the parties stipulated that the evidence presented at the Green hearing would constitute the evidence at the Smith hearing. The district judge granted both motions to suppress, ostensibly for the reason that the officers must have observed, and begun pursuit of, the defendants within Ottawa. The State does not contend the arresting officers ever saw the defendants or their vehicle in Ottawa or that actual pursuit of the vehicle began within the city. The first stop of the defendants’ automobile was made voluntarily by them in Miami County. The actual stop and arrest by the Ottawa officers took place in Johnson County.
The extraterritorial jurisdiction of municipal police officers is governed by K.S.A. 1994 Supp. 22-2401a(2), which provides:
“Law enforcement officers employed by any city may exercise their powers as law enforcement officers:
(a) Anywhere within the city limits of the city employing them and outside of such city when on property owned or under the control of such city; and
(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.”
(Emphasis added.)
“Fresh pursuit” is defined as “pursuit, without unnecessary delay, of a person who has committed a crime, or who is reasonably suspected of having committed a crime.” K.S.A. 1994 Supp. 22-2401a(6)(c).
The interpretation of a statute is a question of law. This court’s review of questions of law is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
It is undisputed that no request for assistance was made by law enforcement officers from any jurisdiction outside Ottawa. Therefore, the only issue on this point is whether the Ottawa police officers were in “fresh pursuit” of the defendants as defined by K.S.A. 1994 Supp. 22-2401a(2)(b) when they made the extraterritorial stop and arrest.
Kansas courts have not specifically addressed whether an officer must chase the fleeing suspect over the jurisdictional border to qualify as fresh pursuit. In the only cases we have found in which the Kansas fresh pursuit statute has been at issue, the officers followed the suspects from their jurisdiction across the jurisdictional border, and then the arrest was made. State v. Hodges, 252 Kan. 989, 851 P.2d 352 (1993); City of Frame Village v. Eddy, 14 Kan. App. 2d 661, 798 P.2d 66 (1990).
Hodges, although factually distinguishable, is instructive. In Hodges, a Riley County police officer observed suspicious behavior in a business district of Manhattan which had been plagued by a number of recent burglaries. When the suspects left the business district, the officer followed them to a restaurant, where they stayed for approximately 30 minutes. The officer then followed the suspects out of town, and another Riley County officer eventually stopped them. Although the arresting officer activated his lights in Riley County, the stop was made in Geary County. The trial court suppressed the evidence after finding the Riley County officers acted beyond their power in stopping the vehicle in Geary County.
On appeal, this court held that, although the officer could have reasonably suspected that a crime had been committed when the vehicle was in the business district, the stop by the Riley County officers in Geary County was not justified because the officers were not in fresh pursuit. The court found the pursuit was “interrupted rather than continuous and protracted rather than without delay.” 252 Kan. at 1001.
In Eddy, the defendant was arrested in Overland Park by a Prairie Village police officer and subsequently charged with driving while under the influence of alcohol. The arresting officer observed Eddy commit several traffic violations while in Prairie Village. The officer followed Eddy and stopped him in Overland Park. The Court of Appeals concluded this was fresh pursuit because “the officer’s pursuit of the vehicle was continuous and without delay.” 14 Kan. App. 2d at 663.
This court has held that under the Missouri uniform law on fresh pursuit, the arresting officer was not required to chase the suspects out of his jurisdiction when making an extraterritorial arrest. In State v. Tillman, 208 Kan. 954, 494 P.2d 1178 (1972), the defendants fled the scene of an armed robbery in Kansas City, Kansas. A private citizen followed the defendants until they abandoned their vehicle in Kansas City, Missouri. Prior to undertaking the pursuit, the citizen had directed his wife to call the police, and, after the defendants abandoned their vehicle, he notified Kansas and Missouri police officers. After picking up another eyewitness at the scene of the robbery, the Kansas officers went to the place where the vehicle had been abandoned. Missouri officers had already checked the license tag and determined the vehicle had been rented by Charles Gratten. The Kansas officers staked out Gratten’s house for 15 or 20 minutes and were then advised to go to the rental agency in Kansas City, Missouri, where the men who had rented the vehicle had been observed. After the eyewitness identified the defendants, the Kansas officers arrested them. Ninety minutes had elapsed between the time the defendants fled the scene and the time they were arrested. On appeal, the defendants argued the arrest in Missouri by the Kansas officers was unlawful.
In Tillman, the court recognized that both Kansas and Missouri had adopted the Uniform Law on Fresh Pursuit, and that the Kansas and Missouri statutes, although not identical, had “essentially similar provisions.” 208 Kan. at 957. Under Missouri law, a Kansas police officer who entered Missouri in fresh pursuit of an escaping felon and continued the pursuit in that state had the same authority to arrest and hold the person in custody as a Missouri officer. The Missouri statute defined fresh pursuit as “pursuit without unreasonable delay” and further specified that “fresh pursuit . . . shall not necessarily imply instant pursuit.” 208 Kan. at 957. In contrast, the Kansas statute, K.S.A. 22-2404(c) (which is identical to K.S.A. 1994 Supp. 22-2401a[6][c]), limited the definition to “pursuit without unnecessary delay.”
The court had no hesitancy in concluding that the officers were in fresh pursuit within the meaning of the Missouri statute. Find ing die pursuit “continuous, uninterrupted and without unreasonable delay,” the court held that the arrest was lawful. 208 Kan. at 958. Significantly, in City of Junction City v. Riley, 240 Kan. 614, 616, 731 P.2d 310, cert. denied 482 U.S. 917 (1987), the court stated Tillman held that the circumstances in that case showed fresh pursuit within the meaning of the uniform law on fresh pursuit adopted in both Missouri and Kansas.
As noted in Tillman, the Kansas and Missouri statutes are essentially similar. The Kansas statute requires only that the pursuit be without unnecessary delay; it does not require continuous observation of the fleeing suspects. Based on similar rationale to that applied in Tillman, Hodges, and Eddy, other courts interpreting the language “fresh pursuit” have upheld extraterritorial warrantless arrests where the fleeing suspects were not chased across the jurisdictional boundary.
In Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979), the Colorado Supreme Court, interpreting language identical to the Kansas fresh pursuit statutes, upheld an extraterritorial warrant-less arrest where the suspect was not followed across the jurisdictional boundary. In Chames, a Lakewood police officer responded to a report of a hit and run accident and upon arriving at the scene, learned that the vehicle was registered to the defendant, who lived in Denver. The officer promptly drove to the defendant’s Denver address, observed the defendant pulling into his driveway, and arrested him. The court concluded that although fresh pursuit obviously includes high-speed, Hollywood-style automobile chases, it also includes less dramatic police action. In determining if the officer was in fresh pursuit, the court recognized three factors: 1) whether the officer acted without unnecessary delay; 2) whether the pursuit was continuous and uninterrupted, although there need not be continuous surveillance of the suspect or uninterrupted knowledge of the suspect’s whereabouts; and 3) the relationship in time of the commission of the offense, the commencement of the pursuit and the apprehension of the suspect. Because the police responded immediately to the call and promptly pursued the only lead available, the court held that the officer was in fresh pursuit. 198 Colo. at 364-65.
In Duenez v. State, 735 S.W.2d 563 (Tex. App. 1987), a city police officer received a report of a car burglary and a description of the suspects and their direction of travel. The officer proceeded out of the city limits and, within three to five minutes of receiving the call, located a vehicle matching the description. The officer stopped the vehicle and arrested the defendant. Under Texas law, extraterritorial arrests were authorized if the officer was in “hot pursuit.” The court upheld the arrest, even though the arresting officer never saw the suspects within his jurisdiction, because the pursuit was continuous, uninterrupted, and without unreasonable delay.
In Com. v. Magwood, 503 Pa. 169, 469 A.2d 115 (1983), city police officers received a report of an attempted robbery. An officer sought the suspect after receiving his description and direction of flight. The officer located and arrested the suspect outside the officer s jurisdictional boundary. The court held that the Pennsylvania statute, which authorized extraterritorial arrests when the officer “continues in pursuit,” contemplated “fresh pursuit.” The court found the police continuously pursued the defendant from the time of the initial report and upheld the arrest after concluding the pursuit was fresh, continuous, and uninterrupted. 503 Pa. at 175-76. See also Com. v. Stasiak, 305 Pa. Super. 257, 451 A.2d 520 (1982) (extraterritorial arrest upheld because pursuit was fresh, continuous, and uninterrupted).
Other jurisdictions reaching similar results include People v. Clark, 46 Ill. App. 3d 240, 360 N.E.2d 1160, lv. to appeal denied 66 Ill. 2d 632 (1977); Jimenez v. State, 750 S.W.2d 798 (Tex. App. 1988) (applying Texas and New Mexico law); Six Feathers v. State, 611 P.2d 857 (Wyo. 1980).
None of the cases we have found require that an actual insight chase begin within the officer’s territorial jurisdiction. Our statutes require only that the pursuit be “without unnecessary delay, of a person who has committed a crime, or who is reasonably suspected of having committed a crime.” K.S.A. 1994 Supp. 22-2401a(6)(c). As stated in Charnes, 198 Colo. at 365, among the factors to be considered in determining whether an officer is in fresh pursuit are: (1) whether the officer acted without unnecessary delay; (2) whether the pursuit was continuous and uninterrupted, although there need not be continuous surveillance of the suspect or uninterrupted knowledge of the suspect’s whereabouts; and (3) the relationship in time of the commission of the crime, the commencement of the pursuit, and the apprehension of the suspect. Additionally, actual visual pursuit of the person sought need not begin within the officer’s territorial jurisdiction.
Here, the criminal activity that prompted the pursuit originated in Ottawa. Although the Ottawa officers did not chase die defendants over the jurisdictional boundary, the pursuit was continuous, uninterrupted, and without delay. The officers immediately began pursuing the defendants upon receiving a report of the robbery and a description of the suspects and their direction of flight. The officers located the vehicle within seven minutes and chased it until it stopped. The officers continuously pursued the vehicle during the entire 28-minute period between the initial report of the crime and the ultimate stop and arrest of the defendants. There was no break in the officers’ efforts to apprehend the defendants or the defendants’ efforts to escape. The trial court erred in finding the officers were not in fresh pursuit under K.S.A. 1994 Supp. 22-2401a(2)(b). The extraterritorial stop and arrest were lawful. The trial court erred in granting the motions to suppress evidence.
We have carefully considered other arguments of the defendants on both the issues before the court and find them to be without merit. In view of the result reached, we need not address other arguments of the State in support of its position.
In conclusion, we reverse the trial court’s orders suppressing the physical evidence and the defendants’ statements in the cases of both Green and Smith. We also reverse the trial court’s order dismissing the complaint against defendant Green. We remand the case of State v. Green with directions to reinstate the complaint as to the one count of aggravated robbeiy. Both State v. Smith and State v. Green are remanded for further proceedings as to each defendant.
Reversed and remanded with directions.
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The opinion of the court was delivered by
Lockett, J.:
The father of two minor children appeals the district court’s order granting the adoption of the children by their stepfather because the father had failed or refused to assume the duties of a parent for two consecutive years prior to the filing of the petition. K.S.A. 59~2136(d). The case was transferred to this court pursuant to K.S.A. 20-3018(c). For the sake of clarity and compliance with Supreme Court Rule 7.043 (1994 Kan. Ct. R. Annot. 42), the children are referred to by their initials and the parties to the adoption proceeding are referred to by their relation to the children.
Following an acrimonious confrontation with Father, Mother canceled a scheduled visitation by Father with the children. The petition for adoption was filed three days later on October 1, 1993.
Stepfathers petition to adopt S.E.B., bom October 24, 1984, and K.A.B., bom March 24, 1986, stated that S.E.B. and K.A.B. had resided with Stepfather since his marriage to Mother, a period of over four years. It alleged that Father had wholly failed and refused to contribute in any way to the support of S.E.B. and K.A.B. or otherwise assume any of the duties of a parent for a period of more than two years. The petition asserted that Father’s consent to the adoption was not required. On the same day the petition was filed, Mother filed her consent to the adoption. Father objected to the adoption of the children.
At the hearing Father argued that because he was imprisoned for seven months of the two-year period immediately prior to the filing of the petition for adoption, K.S.A. 59-2136(d) did not apply. Prior to being incarcerated, Father had lived in Wichita, Kansas. After his release from prison, Father moved to Abilene, Kansas, and immediately became involved with the children. The judge found that Father’s consent was not necessaiy because Father had failed or refused to assume the duties of a parent for two years prior to the adoption. The judge granted Stepfather’s petition for adoption.
In his memorandum decision, the judge noted that when Father and Mother were divorced in 1987, an order was entered requiring Father to pay child support of $150 per month. The judge observed that the support order had not been modified and that Father’s total support obligation due October 1, 1993, totalled $10,050, without interest. The judge acknowledged that while on parole in August of 1988, Father had participated in a work release program through the Department of Corrections. In order to participate in the program, Father had to allow the Secretary of Corrections to withhold any support that he was obligated to pay. As a result, Mother received support payments of $150 for the months of April, May, and June 1988. After Father was released from parole in August 1988, Mother received only one additional support check in the amount of $100.
To explain why he had failed to pay the child support ordered by the court, Father claimed that in August 1988 Mother had agreed to accept no support for the children in exchange for Father’s reduced visitation. The judge did not believe Father’s explanation for his failure to pay support and found that in December 1988, at Father’s request, the parties agreed to reduce the support obligation from $150, as ordered by the court, to $75. In exchange for die reduction of child support, Father agreed to give up overnight and extended visitation in Wichita, Kansas, with the children. The judge noted that the original support order was never modified. From August 1988 until Stepfather filed the petition for adoption on October 1, 1993, Father had not made support payments as ordered or at the reduced rate as agreed. The judge found that Father had worked for the majority of the two-year period from October 1, 1991, through September 30, 1993, and during that period Father had been financially able to pay child support. The judge concluded that the agreement to reduce the child support indicated Father’s “total lack of concern for the children — money being more important than visits with the children.”
The judge noted that Father had a long history of legal problems. In 1984, Father had been convicted of theft in Morris County and granted probation. Father was later convicted of theft in Dickinson County, Kansas, in November 1986. The judge observed that Father’s probation was revoked and he was imprisoned in February 1993 and remained in prison until his parole in August 1993. The judge observed that Mother had allowed visitation when requested by Father and had not tried to cut Father out of the children’s lives. The judge noted that there had been extensive visits by the children with Father’s parents and Father’s sister, who lived in Abilene. The judge found that Father had showed little or no interest in the children for the five years preceding the adoption petition.
The judge observed that Stepfather and Mother had provided the sole financial support for the children since their marriage. The judge found that Stepfather was a farmer, of good moral character, and financially able to support, educate, and provide a stable family relationship for the children. The judge found that Stepfather had a close relationship with the children and participated in school functions and the children’s church life. The judge concluded that Stepfather was a fit person to adopt the children and it was in the best interests of the children to grant the adoption.
History of Statute
Prior to its repeal in 1990, K.S.A. 1986 Supp. 59-2102(a)(3) provided that consent to an adoption of any minor child could he given by “one of the parents, if the other has failed or refused to assume the duties of a parent for two consecutive years.” In 1982, 59-2102 was amended to add subsection (b), which expressly allowed the court to disregard incidental visitations, contacts, communications, or contributions in determining whether a parent’s consent was required. L. 1982, ch. 182, § 136.
After the enactment of the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., in 1990, K.S.A. 1990 Supp. 59-2136(d) required the consent of the father in a stepparent adoption “unless such father has failed or refused to assume the duties of a parent for two consecutive years.” The statute included language providing that “the court may disregard incidental visitations, contacts, communications or contributions” in determining whether a father’s consent is required. In 1991, 59-2136(d) was amended to require the relevant period of two consecutive years to be “next preceding the filing of the petition for adoption” and to add a rebuttable presumption that the father has failed or refused to assume the duties of a parent if he has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, during the two-year period. L. 1991, ch. 167, § 1.
As it presently exists, K.S.A. 59-2136(d) provides:
“In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father under subsection (a)(1), (2) or (3) of K.S-.A. 38-1114 and amendments thereto, or who has a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction, the consent of such father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for two consecutive .years next preceding the filing of the petition for adoption or is incapable of giving such consent. In determining whether a father’s consent is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding die filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.”
Although each of the parties cite numerous cases, only two of the cases have facts somewhat similar to this case. In the case of In re Adoption of F.A.R., 242 Kan. 231, 747 P.2d 145 (1987), the stepfather appealed the district court’s denial of his petition to adopt his stepchildren, age 9 and age 7. The stepfather had alleged in the petition for adoption that the father had failed or refused to assume the duties of a natural parent for two consecutive years. See K.S.A. 1986 Supp. 50-2102(a)(3). The father in late 1959, had been convicted of rape, aggravated burglary, and attempted rape and was sentenced to a prison term of 45 years to life. From December 1979 until the date of the hearing on the petition for adoption, the father was confined at the Kansas State Industrial Reformatory (K.S.I.R.) at Hutchinson. The father was not eligible for parole until 1994.
The FAR. court noted that the children and their mother regularly visited the father at K.S.I.R. until June 1981, when the mother terminated the visitations. On July 31, 1981, she filed for a divorce, which was granted October 14, 1981. Sole custody, care, and control of the two children was given to the mother, subject to reasonable visitation rights of the father. No order was made for the father to pay child support. In late 1981, the father’s motion seeking specific visitation rights was granted as to the older child. The father’s last contact with either child was January 20, 1982. After January 1982, the mother refused to force the children to visit their father in prison. After the mother remarried, the stepfather filed a petition to adopt the children. The trial court found the stepfather failed to meet his burden of proof that consent was not required on the ground that the father had failed or refused to assume the duties of a parent for two consecutive years pursuant to K.S.A. 1986 Supp. 59-2102(a)(3).
In determining whether the father had failed or refused to assume the duties of a parent for two consecutive years, the F.A.R. court observed that die best interests of the child, which is the paramount consideration in custody matters, was not controlling in determining the statutory issue of whether a natural parent has failed to assume parental duties. The court had no doubt that the best interests of die children weighed heavily in favor of the adoption. The F.A.R. court noted that it was unfortunate that the father had little concern for the children’s welfare and had chosen to stand upon his legal rights, but that under our statutoiy scheme of adoption he had that choice. Citing In re Adoption of Wilson, 227 Kan. 803, 806, 610 P.2d 598 (1980), the court observed that the fitness of the nonconsenting parent was not a controlling factor under K.S.A. 1986 Supp. 59-2102(a)(3) as it would be in a proceeding to sever parental rights pursuant to K.S.A. 38-1581 et seq. 242 Kan. at 235.
The F.A.R. court noted that in considering whether a nonconsenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered. It pointed out that when a nonconsenting parent is incarcerated and unable to fulfill the customary parental duties of an unrestrained parent, the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability. It noted that a parent imprisoned for a long term cannot provide the customary parental care and guidance ordinarily required. It observed that if an imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship with his or her children, it is for the trial court to determine the sufficiency of such efforts in making a determination under K.S.A. 1986 Supp. 59-2102(a)(3). 242 Kan. at 236. The F.A.R. court affirmed the decision of the trial court denying the stepfather’s petition to adopt.
In In re Adoption of Baby Boy S., 16 Kan. App. 2d 311, 822 P.2d 311 (1991), the Court of Appeals considered the district court’s application of K.S.A. 1990 Supp. 59-2136(h)(4) in granting the stepfather’s petition for adoption and terminating the father’s rights for failure without reasonable cause to provide support for the mother during the six months prior to the child’s birth. The father was incarcerated from August 1990 until the birth of Baby Boy S. in February 1991. The father claimed that his incarceration prevented him from supporting the mother. The Baby Boy S. court noted that the district court when granting the adoption found that the father had shown a complete disregard for the child and had refused to support the mother before his incarceration. The court held that the father’s unwillingness to support his children before he .was incarcerated was a factor the district court could consider and upheld the adoption. 16 Kan. App. 2d at 313-14.
Both F.A.R. and Baby Boy S. preceded the enactment of K.S.A. 59-2136. K.S.A. 59-2136(d) creates a rebuttable presumption that the father has failed or refused to assume the duties of a parent “if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption.” The facts in F.A.R. and Baby Boy S. greatly differ. In F.A.R. the children were 9 and 7 years of age. There was no evidence that a continued relationship with the father would harm the children. In Baby Boy S., the father had refused to support the mother during her pregnancy and to support the child after its birth. The child was neither aware of nor had bonded with the father.
Seven-Month Period of Incarceration
Father contends that the K.S.A. 59-2136(d) presumption does not apply because he was incarcerated for seven months of the two-year period and was not financially able to make the child support payments as ordered in the divorce decree. Stepfather argues that under Father’s interpretation of the statute, a person who was not financially able to pay the ordered support for even one month while incarcerated would negate the applicability of the statute.
Generally speaking, adoption statutes are strictly construed in favor of maintaining the rights of natural parents in those cases where it is claimed that, by reason of a parent’s failure to fulfill parental obligations as prescribed by statute, consent to the adoption is not required. In making a determination in an adoption proceeding of whether a nonconsenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances are to be considered. Although a child can be adopted without the consent of one of the natural parents, the facts warranting an exception as prescribed by statute must be clearly proven. In re Adoption of F.A.R., 242 Kan. 231, Syl. ¶¶ 5, 6, and 10; see In re Adoption of B.C.S., 245 Kan. 182, Syl. ¶ 1, 777 P.2d 776 (1989).
When a nonconsenting parent is incarcerated and unable to fulfill the customaiy parental duties required of an unrestrained parent, the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability. The judge noted Father’s history of legal problems and his failure to pay support as ordered prior to being incarcerated. The district judge found that in addition to his failure to pay child support, Father had not made reasonable attempts to contact and maintain an ongoing relationship with his children during the time of his incarceration. The judge then contrasted the support and stable lifestyle of Stepfather and Mother to that of Father and determined that it was in the best interests of the children that the adoption be granted.
We note that the children were 7 and 9 years of age when the petition for adoption was filed. Unlike Baby Boy S., the children are of the age where they are well aware of their father and their father’s family. The evidence is that the children had contact with Father until his incarceration and that the children were involved with Father’s parents and his sister prior to and subsequent to his incarceration. There is no evidence or findings by the judge that the children would be mentally or physically harmed by continued contact with Father and his family.
There is no doubt that the children are receiving the benefits of the care and support of a more stable home with Stepfather and Mother. There is substantial evidence to support the trial court’s determination that it was in the best interests of the children that they remain in the home of Stepfather. The best interests of the children, however, is not the standard in deciding this adoption. The best interests of the children, which is the paramount consideration in custody matters, is not controlling in determining the statutory issue of whether a natural parent has failed to assume parental duties.
The question in this case is whether the statute requires that a parent be financially able to pay the ordered support for the two-year period before the presumption is applicable. K.S.A. 59-2136(d) creates a rebuttable presumption that a father has failed or refused to assume the duties of a parent “if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption.” To apply the statutory presumption of K.S.A. 59-2136(d), the courts are required to take into consideration the period of time that the father was incarcerated and unable to support the children.
Here, Father was incarcerated for 7 of the 24 months, approximately 30% of the two-year period. It is obvious from the facts that while in prison Father was not financially able to support the children. Because the fitness of the nonconsenting parent and the best interests of the children are not controlling factors under K.S.A. 59-2136(d), we must find that under the circumstances the judge improperly granted the adoption.
Reversed.
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The opinion of the court was delivered by
Davis, J.:
Lario Enterprises, Inc., (Lario) a Shawnee County developer, seeks review of a Court of Appeals decision holding that the developer s discount method of valuing subdivision property for ad valorem tax purposes is unconstitutional and violative of the Kansas statutory scheme of valuation. We granted review because the issue is one of first impression in Kansas and because the issue involves significant tax valuation questions affecting Kansas developers and home buyers.
The Court of Appeals’ opinion provides an excellent description of the developer’s discount method of valuation for ad valorem tax purposes:
“The developer’s discount method of valuation, which is also known as die subdivision approach or die development approach, consists of a discounted cash flow analysis which considers a projected absorption rate and die corresponding drop in income from the sale of lots. Inherent in tiiis approach is die notion diat, if die owner of multiple lots places diem all on the market at once, there would not be enough buyers in die marketplace who would be willing to pay full market price for each lot. Such approach assumes that die seller would have to discount die price of die property to lure additional buyers into the market. The discount is calculated by utilizing an absorption factor, which based upon die number of willing buyers in any given year. In the alternative, the developer’s discount metiiod could be defined as die price diat die owner of multiple lots would accept for all of its lots when sold to one buyer; diat buyer would presumably pay a discounted price for each individual lot because die buyer would take the absorption factor into account in determining how quickly, and for what price, he or she could in turn sell die lots to other buyers.” Hixon v. Lario Enterprises Inc., 19 Kan. App. 2d 643, 647, 875 P.2d 297 (1994).
Before consideration of the undisputed facts in this case, the Board of Tax Appeals (BOTA) approved Lario’s use of the developer’s discount method of valuation, and the BOTA order was affirmed by the Shawnee County District Court. The Court of Appeals, however, reversed on constitutional and statutory grounds. We do not decide the constitutional question posed because the developer’s discount method, as described in this opinion, violates the Kansas statutory scheme for valuing real property for ad valorem tax purposes. For the reasons stated in this opinion, we therefore affirm the decision of the Court of Appeals, as modified.
STANDARD OF REVIEW
The question presented is one of law. BOTA is a specialized agency that exists to decide issues concerning taxation and valuation; its decisions should be given great credence and deference when it is acting in its area of expertise. In re Tax Appeal of Director of Property Valuation, 14 Kan. App. 2d 348, 353, 791 P.2d 1338 (1989), rev. denied 246 Kan. 767 (1990). The ruling of an administrative agency on questions of law, while not as conclusive as its findings of facts, is nonetheless persuasive and may carry with it a strong presumption of correctness. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 246, 834 P.2d 368 (1992). However, if the reviewing court finds that the administrative body’s interpretation of a question of law is erroneous as a matter of law, the court should take corrective steps. 251 Kan. at 246. The party challenging the validity of the agency’s action bears the burden of proving the invalidity of the action. K.S.A. 77-621(a)(1).
FACTS
This case concerns the 1989 property tax appraisal of the Montara and Montara North subdivisions. Montara and Montara North (collectively Montara) were constructed between 1958 and 1960. The units were originally occupied by members of the Air Force stationed at Forbes Field. After the air base closed in 1973, the property was purchased by the City of Topeka and used as low-income rental housing. Lario purchased the property in 1979.
As a subdivision, Montara consists of between 650 and 700 individual parcels of property. These parcels can generally be divided into five groups: Category 1 contains 117 vacant lots; category 2 is comprised of 386 single family rental units; category 3 is made up of 158 vacant single family residences which are in need of renovation and not habitable; category 4 consists of three model homes and offices used by the Montara staff; and category 5 is comprised of three vacant lots and an RV storage area.
Shawnee County (County) appraised all the properties at $18,099,240. Lario appealed to BOTA, claiming that the fair market value based on the developer’s discount method of valuation was $9,600,000. BOTA, accepting the developer’s discount method advanced by Lario, modified the appraised value to the amount of $12,028,600. BOTA accepted the County’s appraisal in category 4, and Lario has not appealed that determination. This appeal by the County involves categories 1, 2, 3, and 5 only.
In support of its contention before BOTA, Lario relied on the testimony of David Craig, an appraiser. He testified that he valued the 117 lots in category 1 as one parcel of land, using the developer’s discount approach. He testified that he valued the property in category 2 as a single unit, using the direct capitalization approach, because the property’s best use was characterized as rental property. Craig also testified that he used the developer’s discount method to value the 158 vacant residences in Category 3. He valued the property in Category 5 as a single unit with no discount. According to Craig, buyers in the marketplace purchasing multiple lots will pay less per lot than if they were buying only one lot, and the developer’s discount method takes this element into consideration. Craig concluded that the value of the entire property was $9,600,000, approximately one-half the County’s valuation.
Lario called Dr. Mark Dotzour, a professor at Wichita State University, who testified that the developer’s discount approach should be used in valuing Lario’s subdivision property. According to Dr. Dotzour, a discount rate is essential in any valuation of a subdivision because a single owner could not sell all of the houses in a subdivision in a given year. Instead, the value of the property is discounted to reflect an absorption rate, viz., the rate at which the parcels could be sold and the cost of holding the parcels until they are sold.
Rick Stuart, Deputy Appraiser for Shawnee County, testified on behalf of the County. Stuart did not originally use the developer’s discount method but later used the discount method to value the vacant lots in category 1 after considering a memorandum from the Property Valuation Division of the Kansas Department of Revenue. Stuart, nevertheless, opined that the developer’s discount method was not a proper method for valuing Montara. According to Stuart, the ad valorem tax statute is concerned with valuing each parcel of property on an annual date and, therefore, it is inappropriate to consider an absorption period to take into account the sale of properties years later.
BOTA approved Lario’s use of the developer’s discount method of appraisal and fixed the value of the property at $12,028,600. On appeal to the district court, the court concluded that the sole issue for review was whether the developer’s discount method was a lawful technique for valuing unsold subdivision properties. The court stated that such a method was legitimate and had been approved by this court in State Highway Commission v. Lee, 207 Kan. 284, 485 P.2d 310 (1971). The court further found that the valuing of several parcels of property as one unit did not violate the uniformity requirement found in the Kansas Constitution. BOTA’s order was upheld.
The Court of Appeals reversed, concluding that the developer’s discount method violated the “uniform and equal basis of valuation” requirement in the Kansas Constitution. It reasoned that the developer’s discount method focused strongly on the identity of the owner of the lot, treating investors with multiple lots differently than owners with one lot and treating an investor with multiple lots in one subdivision differently than an investor with multiple lots spread throughout the city. The Court of Appeals noted that K.S.A. 1994 Supp. 79-501 states that each parcel of real property shall be appraised at its fair market value and that the appraisal should be made as if each parcel is sold on the appraisal date.
STATUTORY SCHEME
Pursuant to the Kansas Constitution, the State is directed to establish a system of valuating property that insures property will be valued in a uniform and equal manner. Kan. Const, art. 11, § 1. Consistent with constitutional dictates, the legislature has provided for a uniform and equal basis of valuation and taxation. K.S.A. 1994 Supp. 79-1439(a) provides that “[a]ll real and tangible personal property which is subject to general ad valorem taxation shall be appraised uniformly and equally as to class and, unless otherwise specified herein, shall be appraised at its fair market value, as defined in K.S.A. 79-503a, and amendments thereto.” K.S.A. 1994 Supp. 79-501 provides that each parcel of real property shall be appraised at its fair market value in money.
Fair market value is defined by K.S.A. 1994 Supp. 79-503a:
“ ‘Fair market value’ means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. For the purposes of this definition it will be assumed that consummation of a sale occurs as of January 1.
“Sales in and of themselves shall not be the sole criteria of fair market value but shall be used in connection with cost, income and other factors including but not by way of exclusion:
(a) The proper classification of lands and improvements;
(b) tire size thereof;
(c) die effect of location on value;
(d) depreciation, including physical deterioration or functional, economic or social obsolescence;
(e) cost of reproduction of improvements;
(f) productivity;
(g) earning capacity as indicated by lease price or by capitalization of net income;
(h) rental or reasonable rental values;
(i) sale value on open market with due allowance to abnormal inflationary factors influencing such values;
(j) restrictions imposed upon the use of real estate by local governing bodies, including zoning and planning boards or commissions; and
(k) comparison with values of other property of known or recognized values. The assessment-sales ratio study shall not be used as an appraisal for appraisal purposes.
“The appraisal process utilized in the valuation of all real and tangible personal property for ad valorem tax purposes shall conform to generally accepted appraisal procedures which are adaptable to mass appraisal and consistent with the definition of fair market value unless otherwise specified by law.”
In determining the validity of a tax assessment of real property, the essential question is whether the mandates of 79-503a have been considered and applied. See Northern Natural Gas Co. v. Williams, 208 Kan. 407, Syl. ¶ 7, 493 P.2d 568, cert. denied 406 U.S. 967 (1972). The question before us involves the interpretation of the Kansas statutoiy scheme for valuing real estate for ad valorem purposes. Because it is a question of law, the final construction rests with courts. National Collegiate Realty Corp. v. Board of Johnson County Comm’rs, 236 Kan. 394, 404, 690 P.2d 1366 (1984).
K.S.A. 1994 Supp. 79-501 states that “[e]ach parcel of real property shall be appraised at its fair market value in money.” (Emphasis added.) The “fair market value” of each parcel is determined by using the factors outlined in 79-503a. Appraising all the parcels owned by Lario and discounting them, by either the developmental approach or a discounted cásh flow method, controverts the plain language of the statute. The law requires that fair market value be based on the valuation of the property owned, not the status of the owner of the properly and the number of lots owned. This is not to say that each parcel in a given tract must be valued using the same method of valuation. However, the method of valuation should be tied to factors associated with each parcel of property, not the status of the owner of the property.
The district court concluded that State Highway Commission v. Lee, 207 Kan. 284, and Great Northern Ry. v. Weeks, 297 U.S. 135, 80 L. Ed. 532, 56 S. Ct. 426 (1936), support the use of the developer’s discount approach to tax appraisal. In Lee, the Kansas Supreme Court ruled that it was appropriate to use the development approach to value a tract of land- for condemnation purposes. In Weeks, the United States Supreme Court held that “[t]he principles governing the ascertainment of value for the purposes of taxation, are the same as those that control in condemnation cases.” 297 U.S. at 139.
While we recognized in Lee that the development method of valuation was a derivative of the income method of valuation specifically suited to developers, Lee involved unplatted raw ground that was slated for development. In Lee, we concluded that where there was evidence that subdivision was imminent, and where there would be no comparable sales of land that had been planned for development in the market area, it was appropriate to consider the value of land if developed, taking into account the cost to develop that land. In the present case, we deal with Montara, which has already been platted and where street and utilities are in place. The fair market value for a lot in the subdivision already incorporates the cost of subdivision and the holding cost. Moreover, in this case, there exist comparable sales of land which may be taken into account in determining the fair market value of the property. The dispute in Lee was between valuing the land as raw, unimproved farm ground versus valuing it as a subdivision. Here, the land is not raw unimproved farm ground but is, in fact, a subdivision. We conclude that Lee is not applicable because in this case the land is developed and the owner of the subdivision is simply holding the lots for resale.
Lario also relies on several memoranda of the Kansas Department of Revenue, Division of Property Valuation, which he claims approved the use of the developer s discount approach to appraisal. In its opinion, the Court of Appeals sets forth two relevant memoranda and concludes that the memoranda referred to do not approve the use of the developer s discount method in this case. We agree with the Court of Appeals and quote from that portion of the opinion dealing with the memoranda in question:
“In its brief, Lario relies heavily on several memoranda of die Kansas Department of Revenue, Division of Property Valuation (DPV), which approve the use of the developer’s discount approach to appraisal. A DPV memorandum dated January 5, 1989, provides as follows:
“We have received several inquiries and requests for clarification of subdivision development appraisal procedures. Although mapping specifications call for die creadon of individual parcels when a subdivision plat is filed, the appraisal should actually reflect the aggregate value of the development.
‘The appraiser must consider die rate at which a project will be completed and die number of vacant lots expected to be sold in the local market each year. This absorption period for typical subdivisions covers several years. To account for the impact of this projection on value, a factor reflecting die discount rate should be estimated by ascertaining die appropriate risk rate in die marketplace. This factor is then applied to the expected net proceeds from lot sales over die completion/absorption period to arrive at the present value of die land. When a newly-platted subdivision has been mapped, an influence factor can be applied to each lot or a unique neighborhood CALP model can be developed to accomplish this adjustment. [Emphasis added.]
A DPV memorandum dated February 16, 1990, provides:
‘Aldiough K.S.A. 79-405 requires platted lots in a subdivision to be identified and taxed individually, the appraisal should be based upon the entire tract of land. When the appraisal of the whole tract is complete, die market value shall dien be allocated among the developer’s individual lots. This requires the county appraiser to distinguish between die gross sellout (aggregate of individual retail prices) and the wholesale value of the development as one unit, which is market value.
‘This conclusion reconfirms the Division’s position with respect to the subdivision valuation issue addressed in the Director’s update #26 dated January 5, 1989. County appraisers have been directed to use the development approach when comparable sales data (for entire subdivisions) is limited. You are expected to obtain pertinent income and expense data from developers and prepare an estimate of value based on the present worth of die projected stream of net income.
‘The use of discounted cash flow models have gained wide acceptance in the valuation of this type of investment property over the last few years. The subcommittee strongly recommends the use of a detailed cash flow analysis which itemizes die entire income and expense flow on a year by year basis during die absorption period. In selecting die discount rate, the appraiser shall consider die desirability of the project, the risk involved and the competitive rate of return required to attract capital to die project. This methodology shall be given serious consideration at the formal conference with any developer who has filed a 1989 tax payment under protest. . . .
‘A related issue, brought up by appraisers, concerns the impact of individual subdivision lot sales on the ratio study. These parcels may often sell for two or tiiree times tiieir allocated value when purchased on an individual basis. This is no cause for alarm because the comparison is not appropriate. The subject of the appraisal is a group of lots and die allocated per parcel value is simply an administrative requirement. A sale of one lot from a developer’s holding is very similar to a split which takes place from an acreage tract. The only difference is tiiat the appraiser has some prior knowledge of how die “splits” will likely occur in a subdivision from die recorded plat. Altiiough die sale data will be very useful for arriving at individual lot values it will not be used in die official state assessment/sales ratio study.’
“We conclude tiiat Lario’s reliance on diese memoranda is misplaced. It is clear tiiat die January 5, 1989, memorandum refers to die valuation of a planned subdivision, not a completed one. The memorandum speaks of valuing subdivision parcels ‘when a subdivision plat is filed’ and ‘die rate at which a project will be completed.’ In otiier words, the memorandum approves use of the developer’s discount metiiod to appraise parcels when the plat has been filed, but development, i. e., installing roads and utilities has not been accomplished. The memorandum does not approve use of the developer’s discount method when die plat has been filed, streets and curbs have been laid, utilities have been installed, and homes have been built.” 19 Kan. App. 2d at 649-51.
Several other states have considered and rejected the developer’s discount method of valuation when dealing with subdivided property, where streets and curbs have been laid, utilities have been installed, and homes have been built on the property. In First Interstate Bank v. Dept. of Rev., 306 Or. 450, 455, 760 P.2d 880 (1988), the Oregon Supreme Court found that the developers discount method was not a permissible method of valuation for an established subdivision. The court noted that the developer’s discount method does' not assess the value of the properties when put to their highest and best use but instead, reduces their value to the value they would have if considered as an investment. 306 Or. at 454-55. While the court stated that the developer’s discount method could be an appropriate method for valuing underdeveloped property, it held that “[t]he value of each lot by itself, not as a portion of a larger piece of property, must be assessed” for developed subdivisions. 306 Or. at 453.
The Michigan Supreme Court also rejected the use of the developer’s discount method in Rose Bldg. Co. v. Independence Twp., 436 Mich. 620, 462 N.W.2d 325 (1990). The court found that although the developer’s discount method might be appropriate for raw or unimproved land, the uniformity requirement of the Michigan Constitution compels the assignment of values to property upon the basis of the true cash value of the property and not on the manner in which it is held. 436 Mich. at 640. The court stated that ownership is not a germane consideration when determining value. 436 Mich. at 640.
Likewise, in St. Leonard Shores Joint Ven. v. Supervisor, 307 Md. 441, 445-46, 514 A.2d 1215 (1986), the Maryland Court of Appeals rejected the developer’s discount method. The court held that it was inappropriate to provide any sort of discount for the time necessary to sell all the lots in a subdivision. The court stated: “Regardless of whether a buyer for each lot actually exists, the assessor is required to assess each lot as if a willing buyer exists.” 307 Md. at 446.
In a case not cited by the parties, E. Arapahoe Land v. Bd. of Assessment, 805 P.2d 1170, 1173 (Colo. App. 1990), the Colorado Court of Appeals held that when establishing the value of vacant nonagricultural land, the county assessor was required to consider the absorption rate even if the property had not been subdivided. However, the applicable appraisal statute in Colorado specifically required assessing officers to consider the absorption rate for sub division development. See 805 P.2d at 1172. Kansas has no such requirement.
Kansas law requires that each “parcel” of property shall be appraised at its fair market value. K.S.A. 1994 Supp. 79-501. The fair market value of each parcel of property is the price that a well-informed buyer and seller would agree on in an open and competitive market for a sale occurring on January 1. K.S.A. 1994 Supp. 79-503a. The developer s discount method of valuation as applied in this case violates the Kansas statutory scheme of valuing property for ad valorem tax purposes.
The judgment of the Court of Appeals is affirmed as modified, the judgment of the district court is reversed, and the case is remanded to the district court with directions to remand to BOTA for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Lockett, J.:
Defendants were charged with practicing the healing arts without a license under K.S.A. 65-2803, a class B misdemeanor. Following a jury trial, all three defendants were found not guilty. The State, pursuant to K.S.A. 1994 Supp. 22-3602(b)(3), appeals on a question reserved by the prosecution and questions whether the trial court erred by instructing the jury that criminal intent was a required element of the crime of practicing the healing arts without a license.
The facts are not disputed nor an issue in this case. Defendants Sandra Mountjoy a/k/a Momingstar, Donna Griffith, and Carolyn Zak were midwives involved in the breech delivery of a stillborn baby in January 1993 at a home in Edgerton, Kansas. Before the delivery of the baby, defendant Momingstar had entered into a written agreement to perform midwifery services for a sum of money.
Prior to closing arguments the trial judge proposed to instruct the jury:
“In order for the defendant to be guilty of the crime charged, the State must prove that her conduct was intentional. Intentional means willful and purposeful and not accidental.
“Intent or lack of intent is to be determined or inferred from all of the evidence in the case.”
The State objected to the instruction, arguing that a violation of K.S.A. 65-2803 did not require proof of intent. Counsel for the State informed the judge that it wanted to “reserve that question.”
Based on the same reasoning, the State objected to three other instructions. It objected to the instruction requiring proof that the defendants “willfully” engaged in the practice of the healing arts and defining “willfully” as “an act done voluntarily and intentionally with the specific intent to do something the law forbids, and not by mistake or accident.” The prosecution also objected to a third instruction which required the State to prove that the defendants were not acting in response to an emergency and a fourth instruction stating that the jury should consider the defendants’ claims that they reasonably believed that their conduct did not constitute an offense. The prosecution did not, how ever, ask to reserve these questions for appeal at the time it objected.
Jurisdiction
An appellate court has only such jurisdiction as is provided by law. State v. Moses, 227 Kan. 400, Syl. ¶ 7, 607 P.2d 477 (1980). An appeal to this court may be taken by the prosecution as a matter of right after a final judgment in the district court in four situations: (1) from an order dismissing a complaint, information, or indictment; (2) from an order of the district court arresting judgment; (3) upon a question reserved by the prosecution; and (4) upon an order granting a new trial in any case involving a class A or B felony. K.S.A. 1994 Supp. 22-3602(b). See State v. Puckett, 227 Kan. 911, Syl. ¶ 1, 610 P.2d 637 (1980).
The purpose of permitting the State to appeal a question reserved is to allow prosecution to obtain review of an adverse legal ruling on an issue of statewide interest important to the correct and uniform administration of the criminal law which otherwise would not be subject to appellate review. State v. Ruff, 252 Kan. 625, 629, 847 P.2d 1258 (1993). No formal procedural steps are required by K.S.A. 1994 Supp. 22-3602(b) to appeal on a question reserved.. All that is necessary for the State to do to reserve a question for presentation on appeal to the Supreme Court is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken, laying the same foundation for appeal that a defendant is required to lay. City of Overland Park v. Cunningham, 253 Kan. 765, 766, 861 P.2d 1316 (1993).
The State’s notice of appeal provides: “Notice is hereby given that the State of Kansas, plaintiff, appeals from a question reserved on October 4, 1993, through October 8, 1993, to the Supreme Court of the State of Kansas, pursuant to K.S.A. 22-3602(b)(3).”
The docketing statement filed by the State expanded its original question reserved to four questions: (1) What is the proper scope of criminal liability under K.S.A. 65-2803 and what are the proper instructions that should be given? (2) Did the legislature intend this statute to be a strict liability, general intent, or specific intent crime? (3) Were the trial court instructions on the emergency and mistake of law defenses correct? and (4) Should the trial court have instructed on whether ignorance of the statute is a defense?
Counsel for Mountjoy filed an answer to the State’s docketing statement proposing that the question reserved by the prosecution be further expanded: (1) Is lay midwifery illegal under K.S.A. 65-2803? (2) Because “disease” is not defined in the Kansas Healing Arts Act, K.S.A. 65-2801 et seq., must the person charged have the specific intent to violate the Act? (3) Did the court properly instruct the jury with regard to the emergency defense where the defendant is clearly licensed as a health care provider as defined in K.S.A. 65-2891? and (4) Did the court properly refuse to instruct the jury with regard to ignorance of the law, specifically where the term ‘disease’ is not defined by statute?
To support their claim that the question reserved by the prosecution should be expanded, defendants’ counsel argues that the Kansas Healing Arts Act provides insufficient notice that the practice of midwifery is illegal, contrasting K.S.A. 65-2803 with Missouri statutes which expressly proscribe the practice of midwifery, and asserts that the statute is unconstitutionally vague. Defendants’ counsel further suggests that this court should determine whether the trial court properly instructed the jury because this case is one of first impression.
Except as otherwise provided, an appeal may be taken by a defendant as a matter of right from any judgment against the defendant. K.S.A. 1994 Supp. 22-3602(a). There is no statutory procedure for a defendant to appeal a question of law after an acquittal of the crime charged. When the prosecution appeals on a question reserved, the defendant has no statutory right to expand the question reserved by the prosecution. We have no statutory authority under a question reserved by the prosecution to answer the defendants’ questions regarding whether lay midwifery is illegal under K.S.A. 65-2803 and whether the court properly instructed the jury.
To be considered on appeal, questions reserved by the prosecution must be issues of statewide interest important to the cor rect and uniform administration of criminal law. Questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to determine whether error has been committed by the trial court in its rulings adverse to the State. State v. Adee, 241 Kan. 825, 826, 740 P.2d 611 (1987); State v. Willcox, 240 Kan. 310, Syl. ¶ 1, 729 P.2d 451 (1986); State v. Holland, 236 Kan. 840, Syl. ¶ 1, 696 P.2d 401 (1985); State v. Glaze, 200 Kan. 324, Syl. ¶ 1, 436 P.2d 377 (1968). We have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent. State v. Hudon, 243 Kan. 725, 726, 763 P.2d 611 (1988); State v. Holland, 236 Kan. at 841.
The questions of whether the court improperly instructed the jury as to the affirmative defenses of ignorance or mistake of law and emergency action are not questions of statewide interest to which answers are vital to a correct and uniform administration of justice. The only question of statewide importance for future cases raised by the prosecution is whether the State must prove that the accused had the general intent to violate K.S.A. 65-2803.
Due Process Rights
Defendants assert that in determining the question reserved by the prosecution this court must consider the defendants’ due process right to a fair trial. Defendants argue that their due process right to a fair trial is protected only if K.S.A. 65-2803 is interpreted to include an element of criminal intent. Without citing any authority, defendants simply state: “The due process and fair trial clause of both the Kansas Constitution and the United States Constitution require that a defendant be placed on notice that her conduct is, in fact, illegal,” and “[t]he elimination of the element of criminal intent would be violative of the defendants’ rights guaranteed by the due process clause.”
The State points out that in Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960), the Eighth Circuit noted that the United States Supreme Court had recognized that the elimination of criminal intent from an offense by the legislature is not necessarily violative of the due process clause. In Holdridge, the de fendant was prosecuted for re-entry onto a military reservation in violation of 18 U.S.C. § 1382 (1988) after having been removed therefrom and ordered not to reenter. The first paragraph of that statute requires proof of bad motive or criminal intent in proving an initial trespass under the statute. However, a repeated trespass or a reentry, tied in with prior physical removal or a specific command not to reenter, requires no additional showing of criminal intent. The court noted that this interpretation provided protection to the innocent trespasser. 282 F.2d at 309. The Holdridge court noted that the defendant had been given notice of the illegality of his conduct when he was removed from the premises and told not to return. The court found that under such circumstances the defendant’s rights to due process were not violated by the absence of criminal intent to do the act.
To determine the question reserved we must analyze the legislature’s intent when it enacted the Kansas Healing Arts Act.
Is Intent a Required Element of K.S.A. 65-2803?
The practice of healing arts includes any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, or injury, and includes specifically but not by way of limitation the practice of medicine and surgery; the practice of osteopathic medicine and surgeiy; and the practice of chiropractic. K.S.A. 65-2802(a).
It is unlawful for any person who is not licensed under the Kansas Healing Arts Act or whose license has been revoked or suspended to engage in the practice of the healing arts as defined in the Kansas Healing Arts Act. K.S.A. 65-2803(a). That section does not apply to any health care provider who in good faith renders emergency care or assistance at the scene of an emergency or accident as authorized by K.S.A. 65-2891 and amendments thereto. K.S.A. 65-2803(c). A violation of this section is a class B misdemeanor.
Article 32 of the Kansas Criminal Code defines the principles of criminal liability for offenses committed within this state. K.S.A. 1994 Supp. 21-3201 states that except as otherwise pro vided, criminal intent is an essential element of every crime defined by the criminal code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct is required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner. Intentional conduct is defined as conduct that is purposeful and willful and not accidental. As used in the criminal code, the terms “knowing,” “willful,” “purposeful,” and “on purpose” are included within the term “intentional.”. K.S.A. 1994 Supp. 21-3201(b). Simply stated, criminal intent is the intent to do what the law prohibits. If proof of criminal intent is required, it is not necessary for the State to prove that the accused intended the precise harm or the result that occurred.
In addition to general criminal intent, some statutes also require proof of a specific intent. Under those criminal statutes, the intent to accomplish the precise act or a specific element of the crime which the law prohibits is necessary. One example is the crime of theft, K.S.A. 1994 Supp. 21-3701. The thief must not only have the general intent to take the property of another but must take the property with the specific intent to deprive the owner permanently of the possession, use, or benefit of the property.
A person may be held guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. K.S.A. 21-3204. The notes of the Judicial Council accompanying K.S.A. 21-3204 contain an excerpt from the case of Morissette v. United States, 342 U.S. 246, 252-56, 96 L. Ed. 288, 72 S. Ct. 240 (1952), in which the Court discussed an “accelerating tendency” to call into existence certain crimes against the public welfare which disregard any element of intent.
The State asserts that a person may be held guilty of practicing the healing arts without a license under K.S.A. 65-2803 without having criminal intent because: (1) the offense is a misdemeanor with minimal penalty; (2) there is no statutory language requiring proof of criminal intent; and (3) the broad legislative purpose of the Kansas Healing Arts Act to protect the public welfare indicates the legislature intended to impose absolute liability. The defendants argue that the exceptions to the requirement of criminal intent stated in K.S.A. 21-3204 do not apply. As authority for their assertion the defendants point out that the United States Supreme Court in Morissette declined to impose strict liability where criminal statutes have omitted the element of criminal intent.
In Morissette, the defendant was convicted of “unlawfully, willfully, and knowingly” stealing government property. 342 U.S. at 248. The applicable federal statute did not expressly require an element of criminal intent. The defendant’s défense was that he believed the property to be abandoned and had taken it with no wrongful or criminal intent. The trial court ruled that the statute provided strict liability and instructed the jury that lack of criminal intent was not a defense to the charge of theft of government property. The Sixth Circuit Court of Appeals affirmed.
The United States Supreme Court reversed, holding that the mere omission by Congress of criminal intent in the statute would not be construed as eliminating that element from the offense charged. 342 U.S. at 262-63. It noted that where intent of the accused is an element of the crime charged, its existence is a question of fact which must be submitted to the jury. It concluded that where intent is an element of the crime, the trial court cannot instruct the jury that the law raises a presumption of intent from the act.
For additional authority the defendants refer to United States v. United States Gypsum Co., 438 U.S. 422, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978); United States v. Bailey, 444 U.S. 394, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980); and Ratzlaf v. United States, 510 U.S. 135, 126 L. Ed. 2d 615, 114 S. Ct. 655 (1994), in which the United States Supreme Court reached the same conclusion as in Morissette. Gypsum involved the question of whether a defendant’s state of mind or intent was an element of a federal criminal antitrust offense under the Sherman Act. The Act made nó mention of intent or state of mind as an element of the offense. The Supreme Court, citing Morissette, held that “a defendant’s state of mind or intent is an element of a criminal antitrust offense which must be established by evidence and inferences drawn therefrom arid cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices.” 438 U.S. at 435. In reaching this conclusion, the Court reaffirmed the “familiar proposition that ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ ” 438 U.S. at 436 (quoting Dennis v. United States, 341 U.S. 494, 500, 97 L. Ed. 1137, 71 S. Ct. 857 [1951]). The Court stated that while strict-liability offenses are not unknown to the criminal law and do not invariably offend constitutional requirements, the limited circumstances in which Congress has created and the Court has recognized such offenses attest to their generally unfavored status. It concluded that more than the omission of the appropriate phrase from the statutory definition was necessary to justify dispensing with an intent requirement. 438 U.S. at 437-38.
In Bailey, 444 U.S. 394, the Court addressed the level of mental intent, or mens rea, required to sustain a conviction under 18 U.S.C. § 751(a) (1988), governing escape from federal custody. Neither the language of the statute nor the legislative history mentioned the mens rea required for conviction. 444 U.S. at 397, 406. Noting that the common-law distinction between “general intent” and “specific intent” had been the source of much confusion, the Court looked to the American Law Institute’s Model Penal Code for assistance in defining workable principles of criminal culpability. The Court recognized that the Model Penal Code replaced the term “intent” with a hierarchy of culpable states of mind, identified in descending order of culpability as purpose, knowledge, recklessness, and negligence. 444 U.S. at 403-04. The Court observed that the cases have generally held that, except in narrow classes of offenses, proof that the defendant acted knowingly is sufficient to support a conviction. It held that the prosecution fulfills its burden under 18 U.S.C. § 751(a) if it demonstrates that an escapee knew his or her actions would result in leaving physical confinement without permission. 444 U.S. at 408.
In Ratzlaf, 510 U.S. 135, the primary issue was whether the defendant could be convicted of structuring financial transactions to avoid currency reporting requirements without any proof that he knew it was illegal to conduct a financial transaction in such a manner. The Supreme Court held that the trial judge improperly instructed the jury that the prosecution did not have to prove the defendant knew the structuring was unlawful. 126 L. Ed. 2d at 627. The court held that in.order to prove “willful” conduct, “the jury had to find [the defendant] knew the structuring in which he engaged was illegal.” 126 L. Ed. 2d at 627.
For additional authority the defendant cites Staples v. United States, 511 U.S. __, 128 L. Ed. 2d 608, 114 S. Ct. 1793 (1994) (government should have been required to prove beyond reasonable doubt that defendant knew weapon he possessed had characteristics that brought it within statutory definition of machine gun); Posters 'N' Things v. United States, 511 U.S. _, 128 L. Ed. 2d 539, 114 S. Ct. 1747 (1994) (federal statute proscribing use of interstate conveyance as part of scheme to sell drug paraphernalia requires proof that defendant knowingly made use of interstate conveyance to sell items that he knew were likely to be used with illegal drugs, but does not require proof of specific knowledge that items were drug paraphernalia as defined by statute); United States v. Otiaba, 862 F. Supp. 251 (D.N.D. 1994) (knowledge of illegality is required to establish that defendant knowingly delivered any firearm or ammunition without written notice); United States v. Obiechie, 38 F.3d 309 (7th Cir. 1994) (penalty statute which prescribes penalty for willful violation of licensing statute prohibiting anyone except licensed importer, manufacturer, or dealer from dealing in firearms requires that defendant have knowledge of law for conviction).
Citing State v. Thompson, 237 Kan. 562, 701 P.2d 694 (1985), defendants argue that the fact the crime charged is a misdemeanor does not mean criminal intent is not required. In Thompson, the defendant had been convicted of harassment by telephone in violation of K.S.A. 21-4113(l)(a). The defendant claimed that the statute was unconstitutionally overbroad because it did not require a criminal intent to harass. The Thompson court dis agreed, stating that the existence of a criminal intent is essential unless it clearly appears that the legislature intended to make the act criminal without regard to the intent with which the act was done. The Thompson court concluded that when enacting K.S.A. 21-3201 the legislature made criminal intent an essential element of every crime defined by the Kansas Criminal Code except specifically stated exceptions which did not apply to harassment by telephone. 237 Kan. at 567.
Under the Kansas Healing Arts Act it is unlawful for any person to practice the healing arts without a license. The statute which makes it illegal to practice the healing arts without a license does not require that the person convicted have the intent to practice medicine. See K.S.A. 65-2803. The State asserts that the phrase “[i]t shall be unlawful” and the absence of statutory language indicating intent is required indicate the legislative intent to impose absolute liability. The State further contends that the Kansas Healing Arts Act demonstrates the legislature’s concern for the public welfare of the citizens of Kansas. It argues that the unauthorized practice of the healing arts is an offense for which the legislature intended to impose absolute liability under the public welfare doctrine.
The right to practice the healing arts is a privilege granted by legislative authority and not a natural right of individuals. The legislature deemed it necessary as a matter of policy in the interests of public health, safety, and welfare, to enact laws covering the granting of that privilege and its subsequent regulation to protect the public against unprofessional, improper, unauthorized, and unqualified practice of the healing arts. K.S.A. 65-2801.
The State cites several cases to support its assertion that K.S.A. 65-2803 was enacted to protect the public welfare and does not require proof of criminal intent to show a violation of the Act. In Johnson v. Killion, 178 Kan. 154, 283 P.2d 433 (1955), the court interpreted a statute which required applicants for liquid-fuels motor carrier licenses to obtain liability insurance for injury or damage resulting from the negligent operation of such carrier. The Johnson court noted that the purpose of the statute was to protect the public from negligent conduct of a motor vehicle op erator. The court observed that it was fundamental that where a statute is designed to protect the public, the language must be construed in the light of the legislative intent and purpose and is entitled to a broad interpretation so that its public purpose may be fully carried out. 178 Kan. at 158-59.
In State, ex rel., v. Fadely, 180 Kan. 652, 665, 308 P.2d 537 (1957), the court addressed the constitutionality of acts of the legislature establishing a state emergency fund, making appropriations thereto, and creating a state finance council. The court discussed whether the legislation contained sufficient standards for the statutes to operate in the manner intended. The court addressed whether the “preservation of the . public health” was susceptible to an accurate definition. 180 Kan. at 665. As part of its discussion, the court observed that among all the objects sought to be secured by government, none is more important than the preservation of the public health, and an imperative obligation rests upon the State through its proper instrumentalities or agencies to take all necessary steps to accomplish that objective. It stated that statutes enacted to protect public health should be liberally construed and concluded that power could be conferred on administrative boards to carry out such purpose. 180 Kan. at 665.
A third case cited by the State is State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 410 P.2d 308 (1966). In that case, the court examined whether the Dairy Practices Act is prohibiting premium gifts to consumers violated due process by failing to sufficiently define the acts forbidden and by not requiring a criminal intent to violate the Act. 196 Kan. at 77. The Fairmont court acknowledged that the common-law rule requiring the element of scienter to hold a person criminally responsible for his or her conduct contains a “well-recognized exception” for public welfare offenses. 196 Kan. at 81. Citing the statement of the public welfare doctrine in United States v. Balint, 258 U.S. 250, 251-52, 66 L. Ed. 604, 42 S. Ct. 301 (1922), the Fairmont court noted that “the [public welfare] doctrine has been recognized in this jurisdiction many times. (State v. Merrifield, 180 Kan. 267, 303 P.2d 155; State v. Beam, 175 Kan. 814, 267 P.2d 509; State v. Brown, 173 Kan. 166, 244 P.2d 1190; State v. Avery, 111 Kan. 588, 207 Pac. 838; and City of Hays v. Schueler, 107 Kan. 635, 193 Pac. 311.)” 196 Kan. at 82. After noting that the dairy industry was affected with a public purpose and constitutionally subject to regulation after Nebbia v. New York, 291 U.S. 502, 78 L. Ed. 940, 54 S. Ct. 505 (1934), the Fairmont court held that the absence of a required criminal intent in doing the acts proscribed by the Dairy Practices Act was not fatal for lack of due process. 196 Kan. at 82.
Other Kansas cases cited by the State where the public welfare doctrine has been followed are: State v. Logan, 198 Kan. 211, 424 P.2d 565 (1967) (violation of the Kansas Liquor Control Act); State v. Merrifield, 180 Kan. 267, 303 P.2d 155 (1956) (driving while license suspended). See also State v. Robinson, 239 Kan. 269, 718 P.2d 1313 (1986) (furnishing alcoholic liquor to a minor); State v. Riedl, 15 Kan. App. 2d 326, 807 P.2d 697 (1991) (various traffic violations); City of Wichita v. Hull, 11 Kan. App. 2d 441, 724 P.2d 699 (1986) (city DUI ordinance); City of Overland Park v. Estell, 8 Kan. App. 2d 182, 653 P.2d 819 (1982), rev. denied 232 Kan. 875 (1983) (city traffic ordinance violation); State v. Baker, 1 Kan. App. 2d 568, 571 P.2d 65 (1977) (speeding).
For additional support of the public welfare doctrine’s application from other jurisdictions, the State cites Khan v. Medical Board, 12 Cal. App. 4th 1834, 16 Cal. Rptr. 2d 385 (1993) (violation of statute prohibiting employment of any unlicensed person to engage in the practice of medicine; where manifest object of statute is to protect public from treatment by unlicensed persons, criminal intent or guilty knowledge not an element); People v. Telfer, 233 Cal. App. 3d 1194, 284 Cal. Rptr. 913 (1991) (many public health statutes do not require proof of intent); and People v. Atkins, 76 Misc. 2d 661, 351 N.Y.S.2d 859 (1974) (ehmination of intent valid and proper when applied to health and welfare laws).
Although both parties observe that K.S.A. 1994 Supp. 21-3201 indicates that criminal intent is an essential element of every crime defined in the Kansas Criminal Code, neither party recognizes that the offense charged is not a crime set out in the Kansas Criminal Code. Both parties note that K.S.A. 21-3204 provides that a person can be convicted of an offense without having criminal intent if (1) the crime is a misdemeanor and (2) the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. The State points out that under K.S.A. 65-2803(d), practicing ,the healing arts without a license is made a class B misdemeanor punishable by a fine of up to $1,000 and a prison term of up to six months. K.S.A. 1994 Supp. 21-4502(l)(b), (2). It argues that there is no statutory provision that prohibits the imposition of absolute liability for a violation of the Act.
Among all the objects sought to be secured; by government, none is more important than the preservation of the public health. State, ex rel., v. Fadely, 180 Kan. at 665. It is fundamental that where a statute is designed to protect the,’public, the language of that statute must be construed in the light of the legislative intent and purpose and is entitled to a broad interpretation that its public purpose may be fully carried out. The common-law rule which requires the element of criminal intent to hold a person criminally responsible for his or her conduct contains a well-recognized exception for public welfare offenses.
The purpose of K.S.A. 65-2803 is to protect the public from the unauthorized practice of the healing arts. The unauthorized practice of the healing arts is an offense which, under the public welfare doctrine, does not require the element of criminal intent.
Appeal sustained.
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The opinion of the court was delivered by
Six, J.:
This first impression case arises from the attempts of classified state employees to bargain. The perimeters of conflict surround the tension between die Public Employee-Employer Relations Act (PEERA), K.S.A. 75-4321 et seq., and the Kansas Department of Administration (KDA) under die Civil Service Act, K.S.A. 75-2925 et seq.
The instant case involves a dispute between the KDA and the Kansas Association of Public Employees (KAPE), representing organized units of service and maintenance employees at Kansas State University (KSU) and Pittsburg State University (PSU). The KDA insists that a certain clause be included in any memorandum of agreement between the employees and their respective universities. At issue is whether, or to what extent, the KDA’s civil service regulations should preempt conflicting terms in a memorandum of agreement reached between a public employer and a group of classified employees organized and certified under PEERA. The KDA appeals from a decision of the district court affirming an order by the Public Employees Relations Board (PERB). Our jurisdiction is under K.S.A. 20-3018 (transfer from Court of Appeals on our motion).
We reason that: (1) the clause the KDA insists be included in the memorandum agreements is not a mandatorily negotiable item and (2) the legislature did not intend for KDA regulations to preempt conflicting terms of a PEERA employer-employee memorandum of agreement. The orders of the district court and PERB are affirmed as modified.
FACTS
The parties submitted the case to PERB on stipulated facts.
KSU Negotiations
In December 1988, negotiations commenced between KSU and its service and maintenance employees represented by KAPE. After almost two years of negotiation and mediation, KSU and KAPE reached a memorandum of understanding covering terms and conditions of employment. The Board of Regents ratified the memorandum. (The Regents supervise KSU and PSU. See K.S.A. 74-3201 et seq.; K.S.A. 1994 Supp. 76-712.)
The agreement was forwarded to the Secretary of the KDA, who rejected it. The Secretary advised the parties that the proposed agreement was disapproved because it lacked a certain provision that had been included, according to the Secretary, in “every existing and past memorandum of agreement between an employee organization and one or more state agencies.” The language in question, which the parties have called a “savings clause” throughout these proceedings, provides as follows:
“Any provision of this Agreement which quotes any valid law, or Department of Administration regulation, all or in part, either directly or indirectly, shall be adhered to in its present form or as it may be subsequently amended and changed.”
The clause is not a typical savings clause. The parties acknowledged the mislabeling as negotiations commenced, but because they have come this far identifying it as a savings clause, they are content to preserve the name for ease of reference. We agree that the clause has been mislabeled but will continue to preserve the name for uniformity in responding to the parties’ contentions.
KSU had attempted to insert a similar clause in the proposed agreement during negotiations, but KAPE objected. KAPE contended that KSU would not be justified in going to impasse over the disputed savings clause because the clause was not a mandatory subject of bargaining under PEERA. Either agreeing with KAPE’s legal opinion or declining to make an issue of it, KSU backed off the savings clause and continued negotiations on other disputed topics, eventually reaching a proposed agreement.
The KDA Secretary, however, insisted that the agreement contain the disputed language. He explained the purpose behind his insistence:
“The goal of the savings clause is to provide uniform application of statutes and Department of Administration regulations concerning civñ service employees that are referred to or paraphrased in the memorandum of agreement. In particular, the clause ensures uniform, consistent application of the statutes and regulations in instances when they are amended after the memorandum has been signed.”
KAPE responded by filing with PERB a prohibited practice complaint against the KDA. KAPE requested that PERB order the KDA to cease and desist insisting on the savings clause.
PSU Negotiations
Similar negotiations took place at PSU between the university and KAPE on behalf of service and maintenance employees. These negotiations began in September 1989. When it became clear that the KDA would insist on the same savings clause, the PSU negotiations broke off and no proposed agreement was reached. KAPE filed a second prohibited practice complaint against the KDA on the same grounds as the KSU complaint. PERB consolidated the two cases for hearing.
PERB’s Decision
The “pivotal issue,” according to PERB’s presiding officer, was whether the savings clause is a “mandatory” or “permissive” subject of bargaining. He explained the difference between mandatory and permissive as follows:
“Once a specific subject has been classified as a ‘mandatory’ subject of bargaining, the parties are required to bargain concerning the subject if it has been proposed by either party, and neither party may take unilateral action on the subject absent completion of the impasse procedure set forth in K.S.A. 75-4332. [Citation omitted.] A ‘permissive’ subject of bargaining falls outside of the K.S.A. 75-4322(t) definition of ‘conditions of employment.’ The parties may bargain by mutual agreement on a permissive subject, but neither side may insist on bargaining to the point of impasse. [Citation omitted.]”
The presiding officer concluded that the savings clause was not a mandatory subject of bargaining; therefore, the savings clause could not be insisted upon by the KDA.
The presiding officer noted that K.S.A. 75-4333(b) suggests prohibited practices can be committed only by a “public employer or its designated representative.” Accordingly, the presiding officer next considered whether the KDA was acting as a “governing body,” a “public employer,” or a “designated representative” of a public employer when it insisted on the savings clause. Relying on Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 667 P.2d 306 (1983) (hereinafter Pittsburg State), the presiding officer held that the Board of Regents, not the KDA, was the governing body and the public employer.
Finally, the presiding officer considered whether the KDA acted as a designated representative of the Board of Regents in the KSU or PSU negotiations. He concluded that because the Board of Regents ratified the KSU agreement, the KDA was not a designated representative when it rejected the agreement; consequently, the KDA lacked authority to reject the agreement but did not commit a prohibited practice under PEERA.
The presiding officer held in the PSU case that the KDA acted as the Board of Regents’ designated representative because the PSU negotiators expressly said that any agreement they reached would be subject to the KDA’s approval. Thus, the KDA committed a prohibited practice by insisting on a nonmandatory topic in negotiations.
Implementation of the proposed agreement was ordered in the KSU case, as the agreement already had been ratified by the Board of Regents. The KDA was ordered to “cease and desist . . . interference with the agreement.” In the PSU case, the KDA was ordered to cease and desist insisting on the savings clause. The tentative agreement, minus the savings clause, was to be reduced to writing and submitted to the Board of Regents for ratification and implementation.
PERB’s 3-2 Decision to Deny Review
The KDA petitioned PERB to review the presiding officer’s decision. See K.S.A. 77-527(a). PERB denied the petition for review in a 3-2 decision. The presiding officer’s order became final. See K.S.A. 77-526(b).
The PERB dissenters focused upon the effect they believed the PERB order would have on the Kansas civil service system:
“This order has adverse and far-reaching implications as it attempts to strip the Secretary of Administration of legislatively vested powers and turn the Civil Service System upside down. This order determines that changes in the State of Kansas Civil Service Regulations cannot be made without allowing organized units to meet and confer on them. This means that an Office Assistant II in the SRS Non-Professional Unit and an Office Assistant II in the Administrative Services Unit and an Office Assistant II in a non-organized unit may all receive different compensation. Civil Service stands for the proposition of equal pay for equal work.”
District Court’s Decision
The KDA, under K.S.A. 75-4334(c), sought judicial review of PERB’s order. The KDA named PERB as the respondent, although KAPE was the opposing party in the agency proceedings. KAPE later filed a motion to intervene, which was granted.
The district court affirmed PERB, holding that the savings clause could not be a mandatory subject of bargaining under the two-part test set forth in Pittsburg State, 233 Kan. at 816. The district court declined to discuss PERB’s holding that the KDA is neither the governing body nor the public employer for the university classified service and maintenance employees, explaining:
“Such a determination is not relevant to the primary issue at hand nor helpful in resolving tire real controversy of this case. Since the savings clause is not a mandatory subject of negotiation it matters little who the public employer is. Who ever the public employer is they can not force the negotiation of a savings clause.
Standard of Review
Judicial review of PERB action taken in response to a prohibited practice complaint is governed by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), 77-601 et seq. K.S.A. 75-4334(c). We review the agency action under the same standards as the district court. Reed v. Kansas Racing Comm'n., 253 Kan. 602, 609, 860 P.2d 684 (1993). K.S.A. 77-623 provides that agency actions are reviewable by appellate courts as in other civil cases.
The legislature has empowered PERB “to effectuate the purposes and provisions” of PEERA. K.S.A. 75-4323(d)(3). Therefore, to the extent the issues turn on PERB’s interpretations of PEERA, such interpretations are entitled to significant deference and, although not binding, should be upheld if supported by a rational basis. State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991). To the extent the issues require interpretations of other statutes such as the Civil Service Act, PERB’s opinions are entitled to no deference. See State Dept. of SRS, 249 Kan. at 166.
DISCUSSION
At issue is the legality of the KDA’s insistence on the savings clause as a condition for its approval of PEERA agreements covering service and maintenance employee units at KSU and PSU. The KDA also seeks a clarification of its role under PEERA in the approval and implementation of such agreements, which we decline to address in light of our resolution of the primary issue.
Background of PEERA
Although PEERA has been in effect nearly 23 years, it has been the subject of few appellate court opinions and relatively litde legislative revision. Fundamental questions concerning the nature of PEERA and the position it occupies in the scheme of public employer-employee relations in Kansas remain clouded. We have recognized that PEERA has a unique nature as a “hybrid” labor relations act, falling somewhere between a pure “meet and confer” act and a classic “collective bargaining” act. See Pittsburg State, 233 Kan. 801, Syl. ¶ 1.
PEERA became effective March 1, 1972. Questions soon developed about the balance it struck between the rights of public employees and their employers. Accordingly, in 1975 and 1976, the legislature appointed a special interim committee to study PEERA and recommend improvements. Proposal No. 44, Public Employer-Employee Relations, Report on Kansas Legislative Interim Studies to the 1976 Kansas Legislature 803.
The 1976 special committee recommended amendments that would “make clear that this is a ‘meet and confer act.” Proposal No. 44, p. 806. The proposed amendments were introduced as S.B. 629. One specific proposal in S.B. 629 would have amended K.S.A. 75-4330(a), which defines the permissible scope of a PEERA memorandum of agreement. The S.B. 629 proposal would have added a fifth exception (there were four then and now) to expressly forbid such agreements from containing “any adjustment or change in any rule or regulation of the secretary of administration, [or] any adjustment or change in the classification plan or the pay plan for the classified service under the Kansas civil service act or in any other pay schedule of the state.” Proposal No. 44, p. 830. S.B. 629 moved among several House and Senate Committees and eventually died when the Senate Judiciary Committee failed to concur in amendments to the bill made by a House Committee of the Whole.
In 1980, Professor Raymond Goetz published a comprehensive article examining the nature and operation of PEERA. See Goetz, The Kansas Public Employer-Employee Relations Law, 28 Kan. L. Rev. 243 (1980). Goetz noted that PEERA imposed upon public employers the affirmative duty to “meet and confer in good faith” which included the obligation to “endeavor to reach agreement.” 28 Kan. L. Rev. at 283-84. However, PEERA failed to provide public employees with all of the rights afforded unions in the private sector. Goetz concluded PEERA was neither a pure “meet and confer” act nor a pure “collective bargaining” act, but rather was a “hybrid” act containing some features of both kinds of labor relations acts. 28 Kan. L. Rev. at 283. Goetz specifically discussed the legislature’s attempt in 1976 to clarify the nature of PEERA. He argued that such an attempt suggested that PEERA, as enacted, should not be construed as consistent with the proposed “meet and confer” amendments. 28 Kan. L. Rev. at 284.
One specific ambiguity in PEERA identified by Professor Goetz was “an apparent conflict between the statutory obligation of the public employer to meet and confer in good faith on conditions of employment and the existing statutes and administrative regulations governing many of these same subjects.” 28 Kan. L. Rev. at 284.
In 1983, we decided Pittsburg State, 233 Kan. 801, involving a dispute between the PSU faculty and the Board of Regents. In Pittsburg State we discussed in detail the nature of PEERA, drawing from Professor Goetz’s work and concurring with his conclusion that PEERA is a “hybrid” act. 233 Kan. at 804. We reviewed PERB’s interpretation of PEERA, which stretched the scope of “mandatory” subjects of bargaining beyond the specifically enumerated “conditions of employment” in K.S.A. 75-4322(t). We found PERB’s balancing test for mandatory negotiability to be a reasonable interpretation. 233 Kan. at 816, 821. We further held that the Board of Regents was the “ultimate authority” and, thus, the “public employer” of the university faculty for purposes of PEERA. 233 Kan. at 812. Justice McFarland noted in her dissenting opinion that Pittsburg State involved unclassified employees. She questioned whether the majority would apply the same reasoning to a case “where classified employees are concerned and thereby let PERB override the Civil Service Board which is statutorily charged with complete control in its field?” 233 Kan. at 844 (McFarland, J., dissenting). The case at bar is a classified employee case.
The legislature responded to Pittsburg State by appointing a 1984 interim study committee charged with reviewing the effect of PEERA on the operation of state government and the “impact on that law of [Pittsburg State].” Proposal 30, Employer-Employee Relations Act, Report on Kansas Legislative Interim Stud ies to the 1985 Kansas Legislature 429. The Special Committee on Labor and Industry reported to the 1985 Legislature and, as in 1976, recommended amending PEERA to “clarify that the existing law is a meet and confer act.” Proposal No. 30, p. 436. The committee’s proposed amendments were introduced as H.B. 2013. H.B. 2013 would have amended the definition of “conditions of employment” in K.S.A. 75-4322(t) and the permissible scope of a PEERA memorandum of agreement in 75-4330(a) to exclude “any matter fixed or governed by the Kansas civil service act . . . or any personnel rules and regulations adopted by the secretary of administration.” H.B. 2013, as amended, at 19. Like its 1976 cousin, H.B. 2013 died before reaching the floor for a vote.
The version of PEERA we review in the case at bar is virtually identical to the legislation reviewed in Pittsburg State. The only amendments since 1983 have been technical in nature.
We have found nothing in the legislative history surrounding the enactment of PEERA which specifically discusses the potential conflict between civil service regulations and provisions in a employee-employer memorandum of agreement. However, the legislature has twice appointed special committees to study the law and recommend changes. Legislation was introduced in 1976 and 1985 which attempted to alter the “hybrid” nature of PEERA and turn it into a pure “meet and confer” law. The proposed legislation would have specifically amended provisions to make clear that nothing in a memorandum of agreement could vary, contradict, or take precedence over a civil service regulation. The proposed legislation has not been adopted.
Since 1983, Pittsburg State has furnished explicit authority that PEERA is a hybrid act, resembling both a “meet and confer” law and a “collective bargaining” law. The legislature has had opportunities to pursue the recommendations of the special interim committees appointed in 1976 and 1985, and it has declined to do so.
Although inferences from legislative inaction are less certain than inferences from legislative action, we infer that the unsuccessful proposals of 1976 and 1985 were attempts to change the law from how it was enacted, rather than attempts to clarify the statutes. Since PEERA exists substantially in the same condition as it did both in 1976 and 1985, we reason that the legislative history supports construing PEERA as creating an exception to the Civil Service Act and the regulations issued thereunder. PEERA was enacted after the Civil Service Act. The legislature did not indicate that agreements reached under PEERA would be subordinate to civil service regulations and subject to unilateral changes at the discretion of the Secretary of Administration.
The KDA admits its savings clause would allow its regulations “to control the conditions of employment if the terms of the memorandum of agreement are in conflict with the terms of the statute or regulation.” The parties agree the savings clause would permit the KDA to unilaterally enact personnel regulations for all classified employees which would preempt any contrary provisions in a memorandum of agreement covering a particular group of classified employees.
A review of the KDA’s contentions advanced before us and in the proceedings below shows that the KDA makes alternative arguments. First, it contends that the savings clause is a mandatory subject of bargaining and, therefore, the KDA was justified in withholding approval of agreements based on that subject, alone. Second, the KDA argues that the legislature intends for civil service regulations to preempt conflicting terms in PEERA agreements.
Independent of the question of mandatory negotiability, the case at bar raises a question of legislative intent. What are the relative positions of KDA regulations issued under the Civil Service Act and the statutory right of public employees under PEERA to organize, negotiate, and enter agreements covering the same subjects? If legislative intent favors civil service regulations over PEERA agreements, then the KDA’s savings clause is of no consequence because its purpose is already achieved by statute. If the legislature intends, however, that PEERA agreements stand apart from civil service regulations, at least with respect to conflicting terms on the same condition of employment, then the KDA’s savings clause is contrary to, and thus preempted by, state law. See K.S.A. 75-4330(a)(l).
The legislative intent issue requires us to examine PEERA and the Civil Service Act together. The parties have argued about the inherent potential conflict between Civil Service Act regulations and PEERA agreements. The KDA devotes nine pages of its brief to the interaction between PEERA and the Civil Service Act. Nevertheless, counsel for PERB suggested that “melding” the civil service laws with PEERA should be left to future cases. He noted, accurately, that neither the decision of the PERB presiding officer nor the decision of the district court addressed head-on the interplay between the Civil Service Act and PEERA.
Interestingly, however, PERB’s counsel, who would like us to limit our focus to the mandatory negotiability question, argued that the savings clause cannot be mandatory because it would result in a “de facto repeal” of PEERA. On the other side, the KDA asks rhetorically in its reply brief, “Did the Legislature intend to repeal the Civil Service Act by enacting PEERA?” Those conflicting assertions highlight the fact that what lies at the crux of this case is an apparent conflict between PEERA and the KDA’s civil service regulations. Resolution of the mandatory-permissive issue is joined to the resolution of the PEERA-KDA conflict. Initially, however, we address and reject the KDA’s argument concerning mandatory negotiability.
Mandatory Negotiability
■ The district court looked only at the “mandatory” or “permissive” question and, upon resolving it, concluded that the remaining issues were irrelevant.
The KDA contends that the savings clause is mandatorily negotiable under the balancing test announced in Pittsburg State. It argues that PERB misapplied the balancing test and suggests that if the test is applied correctly, the savings clause emerges as a mandatory subject of bargaining. If the savings clause is a mandatory subject of bargaining, the KDA reasons, it was justified in withholding approval of the agreements based on the savings clause alone.
The KDA’s contention is not well taken. The contention manipulates the words that have been used to describe mandatory subjects of bargaining without considering the purpose and function of mandatory negotiability under PEERA. The result is, as the district court concluded, an argument that “does not make sense.”
PEERA makes negotiating over conditions of employment mandatory. K.S.A. 75-4327(b) provides:
“Where an employee organization has been certified by the board as representing a majority of the employees in an appropriate unit, or recognized formally by the public employer pursuant to the provisions of this act, the appropriate employer shall meet and confer in good faith with such employee organization in the determination of conditions of emplotjment of the public employees as provided in this act, and may enter into a memorandum of agreement with such recognized employee organization.” (Emphasis added.)
PEERA imposes no obligation on the employer to agree to the employees’ demands. However, PEERA prevents public employers that come under its provisions from simply acting unilaterally in determining conditions of employment. Although the governing body of the public employer ultimately can dictate any mandatory subject of bargaining, it can do so only after the public employer has negotiated in good faith, reached impasse in good faith, and participated in impasse-resolution procedures such as fact-finding and mediation. See K.S.A. 75-4332.
In Pittsburg State, we upheld PERB’s interpretation that the list of conditions of employment in K.S.A. 75-4322(t) was not an exclusive list of the topics over which employees had a right to bargain. Other topics could come within the definition if they were “significantly related to an express condition of employment, and if negotiating the item will not unduly interfere with management rights reserved to the employer by law.” 233 Kan. at 816.
The KDA concedes by implication that its savings clause cannot, itself, be characterized as a condition of employment for public employees. The savings clause, in our view, is not “significantly related” — that is, related in kind — to any express condition of employment listed under K.S.A. 75-4322(t). The KDA correcdy explains that its “savings clause provides a procedure for establishing conditions of employment.”
The KDA’s position misconstrues the nature and purpose of the Pittsburg State balancing test for mandatory negotiability. The balancing test was employed because PERB determined that the list of conditions of employment in K.S.A. 75-4322(t) was not exhaustive. Consequently, more subjects than those expressly listed could be considered mandatory subjects of bargaining. The scope of the employees’ rights and the employer’s obligation to bargain was expanded beyond the express terms of 75-4322(t).
The KDA candidly admits that the “savings clause allows Administration to exercise the duties conferred upon it by the Kansas Civil Service Act without first meeting and conferring .... [It thereby] allows the State to maintain an efficient system with uniform conditions of employment for all classified employees.” The KDA misconstrues the nature of the mandatory negotiability balancing test. In characterizing its savings clause as providing a “procedure for establishing conditions of employment listed in 75-4322(t),” the KDA neglects the procedure already established by PEERA — meeting and conferring in good faith. The savings clause is not á mandatorily negotiable item.
Conflict Between the Civil Service Act and PEERA
K.S.A. 75-4327(b) of PEERA, as noted above, requires public employers who come within its provisions to “meet and confer in good faith ... in the determination of conditions of employment.” The employer has no obligation to agree. The employer must, however, “endeavor to reach agreement.” K.S.A. 75-4322(m). The failure of a public employer to meet and confer in good faith is a prohibited practice under K.S.A. 75-4333(b)(5).
K.S.A. 75-3746(h) and K.S.A. 1994 Supp. 75-3747(a)(l), meanwhile, provide direct authority for the Secretary of Administration, upon recommendations from the director of personnel services, to adopt rules and regulations to carry out the provisions of the Civil Service Act. Express statutory authority allows the Secretary to issue regulations on “hours of work and other conditions of employment.” See K.S.A. 75-3746(h). Acting under this authority, the Secretary has published regulations covering many of the same conditions of employment as those expressly made nego Hable in PEERA by K.S.A. 75-4322(t). See K.A.R. 1-9-1 through 1-9-22 (regulaHons for hours of work; holidays; vacation, sick, and injury leave; jury duty; etc.).
The conflict between collecHve negotiability and civil service regulation of the same conditions of employment arises in many jurisdicHons that have both a public employer-employee relaHons law and civil service statutes. Two other states, Florida and Wisconsin, were menfloned by the parties during proceedings below. Both of those states’ public employer-employee relaHons statutes expressly provide that terms in negotiated agreements supersede and take precedence over civil service statutes and regulaHons. See Fla. Stat. § 447.601 (1993); Wis. Stat. § 111.93(3) (1992). New Jersey, to the contrary, has expressly provided that civil service regulaHons predominate. See N.J. Stat. Ann. § 34:13A-5.3 (1988). “In most jurisdicHons, however, there is no statute which resolves the issue of predominance and it has been left to the courts to resolve the conflicts which arise between collective agreement and the civil service law.” 1 Weme, The Law and Prac-Hce of Public Employment Labor RelaHons § 3.2, p. 47 (1974). PEERA contains no explicit provision addressing the relaHonship between civil service regulaHons and conflicHng terms in a memorandum of agreement.
PERB’s presiding officer quoted and concurred with the following statement from a previous PERB order:
“[I]t seems unthinkable that the Kansas legislature would have gone to the trouble [of] establishing tire Public Employer-Employee Relations Act, with its detailed procedures for recognition of employee representatives, meet and confer, impasse, and resolving prohibited practices, and would then have provided that the existence of a statute or regulation would automatically preclude the negotiability of all items, even mandatorily negotiable subjects, within the scope of PEERA.”
“It is a fundamental rule of statutory construcHon to which all others are subordinate that the intent of the legislature governs when that intent can be ascertained.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 1, 829 P.2d 561 (1992). Therefore, we must decide, based on statutory text, legislaHve history, and any other credible evidence of legislaHve intent, what influence, if any, the legislature intends for civil service regulations to have on conflicting tenns in PEERA agreements, or vice versa.
Statutory Text
The KDA contends K.S.A. 75-4322(t) and K.S.A. 75-4330(a)(l) operate to “pre-empt any provision of a memorandum of agreement which is inconsistent with the [KDA] regulations.” After listing examples of conditions of employment, K.S.A. 75-4322(t) states: “but nothing in this act shall authorize the adjustment or change of such matters which have been fixed by statute or by the constitution of this state.” (Emphasis added.) K.S.A. 75-4330(a) provides: “The scope of a memorandum of agreement may extend to all matters relating to conditions of employment, except proposals relating to (1) any subject preempted by federal or state law . . . .” (Emphasis added.)
Apparently recognizing that neither K.S.A. 75-4322(t) nor K.S.A. 75-4330(a) refers to “regulations,” the KDA attempts to fill that gap by relying on the rule that duly enacted and published administrative regulations are given the force and effect of law. See J. G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 500, 680 P.2d 291 (1984). That rule does not apply to the issue before us. The issue is not what force and effect the civil service regulations are entitled to in isolation, but how the legislature intended to reconcile a conflict between such regulations and another body of statutory law. Administrative regulations do not supplant statutory law. In re Tax Appeal of Chief Industries, Inc., 255 Kan. 640, 650, 875 P.2d 278 (1994).
K.S.A. 75-4322(t) and K.S.A. 75-4330(a) support the conclusion that the legislature intended PEERA agreements to operate independently of civil service regulations where the two conflict. Particularly significant is 75-4322(t). The legislature lists specific subjects over which it requires good faith negotiation. It then adds, nothing “shall authorize the adjustment or change of such matters which have been fixed by statute or by the constitution.” (Emphasis added.) K.S.A. 75-4322(t). Rather than simply using the general term, “state law,” as it did in 75-4330(a), the legislature specifically identified two sources of state law and omitted a third, administrative regulations. Under the well-established maxim of statutory construction, expressio unius est exclusio alterius, when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. See State v. Wood, 231 Kan. 699, 701, 647 P.2d 1327 (1982); In re Olander, 213 Kan. 282, 285, 515 P.2d 1211 (1973). Accordingly, K.S.A. 75-4322(t) suggests that the legislature envisioned conflicts between PEERA agreements and administrative regulations as a natural and permissible consequence of enacting PEERA and purposefully declined to give civil service regulations preemptive force.
Similarly, K.S.A. 75-4330(a) provides little help to the KDA. K.S.A. 75-4330(a) says that a memorandum of agreement “may extend to all matters relating to conditions of employment,” thus referencing K.S.A. 75-4322(t). The legislature then excludes from the scope of PEERA agreements “any subject preempted by federal or state law.” K.S.A. 75-4330(a)(l). This exclusion does not identify which federal and state laws preempt certain subjects in PEERA agreements. This provision supports the KDA’s position only if we conclude that civil service regulations were intended by the legislature to preempt conflicting provisions in PEERA agreements. Standing alone, 75-4330(a) provides no indication on that question of legislative intent.
K.S.A. 75-4330(c) states:
“Any part or parts of a memorandum of agreement which relate to a matter which can be implemented by amendment of rules and regulations of the secretary of administration or by amendment of the pay plan and pay schedules of the state may be approved or rejected by the state finance council, and if approved, shall thereupon be implemented by it to become effective at such time or times as it specifies.” (Emphasis added.)
This provision suggests that a PEERA agreement, upon approval by the state finance council, may require a change in administrative regulations, rather than vice versa.
The combined effect of several related provisions in PEERA suggests that the legislature envisioned PEERA agreements covering conditions of employment to be independent of, or take precedence over, conflicting civil service regulations.
K.S.A. 75-2925, the statement of purpose of the Civil Service Act, expresses a spirit of fairness and equality. The goal of uniformity has not been expressly mandated by the legislature. KDA has derived from 75-2925 its admirable goal of uniformity, which is expressed in K.A.R. l-l-l(c): “Positions essentially alike shall be treated in a uniform manner in all personnel processes, and positions not so alike shall be treated with appropriate recognition of the nature and extent of the differences between them.”
The legislature declared the policy and objectives behind PEERA in K.S.A. 75-4321, which was quoted substantially in full in Pittsburg State, 233 Kan. at 803.
The legislative statement on which the KDA relies in asserting the predominance of the civil service regulations is K.S.A. 75-4321(a)(4):
“[T]here neither is, nor can be, an analogy of statuses between public employees and private employees, in fact or law, because of inherent differences in the employment relationship arising out of the unique fact that the public employer was established by and is run for the benefit of all the people and its authority derives not from contract nor the profit motive inherent in the principle of free private enterprise, but from the constitution, statutes, civil service rules, regulations and resolutions.”
K.S.A. 75-4321(a)(4) is the only express reference in PEERA to civil service regulations, and the statute does not endorse the concept that civil service regulations must preempt conflicting provisions in a PEERA memorandum of agreement.
The purpose of enacting PEERA is to give organized classified employees a specific but limited right to negotiate with their employer over conditions of employment. The purpose would be frustrated: (1) by requiring agreements reached between the employees and employer to meet the KDA’s strict standard of uniformity for all similarly classified employees across the state and (2) by giving the KDA unilateral power to effectively modify such agreements to ensure such uniformity.
Additional Issues Raised by KDA
The KDA raises two issues challenging PERB’s conclusions as to whether a prohibited practice under K.S.A. 75-4333(b) was committed: (1) whether the KDA is the “public employer” for classified employees at regents’ institutions and (2) whether PERB must make an express finding that a prohibited practice was “willfully” committed. We have concluded that the KDA had no right to insist upon the savings clause. That is the only action complained of in this case, and our conclusion, in our view, ends the only real controversy squarely presented. Thus, we express no opinion on either question but leave them for another day and another case in which they must necessarily be decided.
The KDA contends that both questions are relevant to whether a prohibited practice has been committed and that the prohibited practice question determines the existence and scope of PERB’s statutory authority to fashion remedies. See K.S.A. 75-4334(b). In this case, having determined that the KDA could not insist on the savings clause, and in view of the fact that an agreement had been reached at KSU and an agreement was all but reached at PSU — pending resolution of the savings clause dispute — PERB simply ordered the parties to allow the agreements to be implemented as negotiated. The only dispute — whether the savings clause could be forced into the agreement by the KDA — had been resolved. We hold under these circumstances that PERB acted within its authority to “effectuate the purposes and provisions” of PEERA. See K.S.A. 75-4323(d)(3).
We conclude that: (1) the savings clause is not a mandatory subject of bargaining; (2) the legislature intends that PEERA agreements on specific conditions of employment are not to be preempted by civil service regulations; (3) the questions of whether the KDA is the “public employer” and whether PERB must expressly find a prohibited practice to have been “willfully” committed are not necessary to the resolution of the present controversy; and (4) PERB, under the facts of this case, did not exceed its statutory jurisdiction in fashioning remedies.
We modify PERB’s order by making no determination as to the KDA’s public employer status and by viewing as moot under these circumstances the question of whether a prohibited practice was committed.
Affirmed as modified.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the State pursuant to K.S.A. 1993 Supp. 22-3602(b)(l) from the dismissal of a complaint charging the defendant, George D. Miller, with burglary, contrary to K.S.A. 1993 Supp. 21-3715, and theft, contrary to K.S.A. 1993 Supp. 21-3701.
The dispositive issues are the lack of a record and the effect of a law enforcement officer making an arrest outside the officer s jurisdiction.
The defendant was charged with one count of theft and one count of burglary arising from an incident at the John Knight residence in Osage City, Osage County, Kansas.
The defendant filed a motion to dismiss the charges, arguing that his arrest, which was made in the city of Lyndon, in Osage County, was unlawful because it was made by Osage City police officers outside their jurisdiction. The State filed a brief in opposition, arguing that the arrest was a valid citizen’s arrest and that summary dismissal because of a technical defect was improper. After the presentation of evidence the magistrate judge granted the defendant’s motion, and the complaint was dismissed. The magistrate judge relied on State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983). Both counsel believed at the time that a record was being made when evidence was presented to the magistrate judge.
The State appealed to the district court. Both parties then were informed no record had been made of the earlier proceedings. Both parties filed briefs giving somewhat different versions of what occurred and what the testimony was. The district judge, by letter, informed the parties that unless he heard from them he would decide the case on the motions and briefs submitted.
The parties then filed a stipulated statement of facts which the district judge considered in addition to the defendant’s written motion to dismiss and briefs filed by the State.
The stipulated facts, in pertinent part, are as follows:
“On October 31, 1993, Osage City Police Officer Newman was dispatched to the John Knight residence located at 232 N. 12th Street in Osage City, Kansas on a report by Teresa Knight of an alleged burglary and theft. Office[r] Newman completed a 12 page report on the alleged incident on October 31, 1993.
“On December 26, 1993, Officer Newman received information from Officer Mitalski of the Osage City Police Department that the defendant herein may have been involved in the October 1993 alleged burglary and theft at the John Knight residence. Officer Mitalski received this information on the evening of December 26, 1993 from juveniles he had been interrogating in regard to an unrelated burglary and theft in Osage City.
“On December 27, 1993, shortly after midnight, based on the juveniles’ ‘tip,’ Officer Newman and Osage City Police Chief Mafhey decided to go to the defendant’s residence located in Lyndon, Kansas.
“The officer arrived at the defendant’s residence at 12:15 a.m. and requested the defendant to come with them to the Osage County Sheriff’s Office ‘to answer some questions’.
“According to Officer Mitalsld’s police report, which was introduced as an exhibit at the January 12, 1994 hearing on defendant’s Motion to Dismiss, the defendant was already placed under arrest when he was Mirandized and asked questions regarding the burglary and theft at 12:30 a.m. in the Sheriff’s Office.
“Officer Newman disputes Officer Mitalski’s report and instead insists that only at the conclusion of die defendant’s questioning in the Osage County Sheriff’s Office did Officer Mitalski, who was not even present at the defendant’s residence or during the questioning of the defendant, inform the defendant tiiat he was placing him under arrest.
“At the January 12,1994 hearing on the defendant’s Motion to Dismiss, Officer Newman testified that when he left his jurisdiction to go to the City of Lyndon to question the defendant at his residence, he felt he had enough information to obtain an arrest warrant but he instead, knowing he did not have proper jurisdiction, decided to go to Lyndon under the guise of a ‘police investigation’ so he could avoid judicial arrest warrant channels.
“The State stipulates and agrees that on December 27, 1993, the Osage City Police Officers were without jurisdictional police power under K.S.A. 22-2401a or its ‘fresh pursuit’ or ‘request for assistance’ exceptions . . . .”
The parties agreed that the defendant relied on State v. Hennessee, 232 Kan. 807, as controlling authority, and the State contended the remedy for a jurisdictional violation is suppression of evidence, not dismissal of the case, as was affirmed in Hennessee. The State also contended that the Osage City police officers made a valid citizen’s arrest pursuant to K.S.A. 22-2403.
The district judge denied the State’s appeal in a one-paragraph order, which states:
“Now on this 4th day of April, 1994, plaintiff, State of Kansas’ appeal is denied. The Court incorporates by reference the defendant’s Memorandum of Law in his Motion to Dismiss as the Court’s findings of fact and conclusions of law.”
The stipulation of facts filed by the parties does not significantly differ from the facts set forth in the defendant’s motion to dismiss.
The memorandum of law sets forth K.S.A. 22-2401a, which provides in pertinent part:
“(2) Law enforcement officers employed by any city may .exercise their powers as law enforcement officers:
(a) Anywhere within the city limits of the city employing them and outside of such city when on property owned or under the control of such city; and
(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.”
The district judge then adopted the defendant’s argument as follows:
“The Kansas Supreme Court case of State v. Hennessee, 232 Kan. 807 (1983) is factually similar to the case at bar and should be dispositive of the issues herein.
“Although Hennessee involved a county deputy’s authority to exercise his police powers outside the jurisdiction of his home county, the language of the two applicable provisions of the same statute (K.S.A. 22-2401a[a] in Hennessee and K.S.A. 22-240la[b] in the case at bar) are identical.
“In Hennessee, the Pratt County Sheriff traveled to the defendant’s known residence in Stafford County to arrest the defendant with a warrant he had secured that same day. The Pratt County Sheriff was accompanied to the defendant’s residence by the Stafford County Sheriff and the K.B.I. whom had jurisdiction in Stafford County. The Supreme Court upheld the trial court’s dismissal of the case pursuant to K.S.A. 22-240la, despite the fact that the sheriff was accompanied by two officers having jurisdiction in Stafford County.
“The Supreme Court reasoned that the Pratt County Sheriff acted beyond the scope of his statutory police power in arresting the defendant and therefore, the case was properly dismissed by the trial court. Hennessee, 232 Kan. at 807, 809.
“Clearly, the Osage City Officers acted outside the scope of their statutory authority and jurisdiction. Thus, the charges filed against the accused must be dismissed as a matter of law.”
The first problem here is the lack of a record. The parties were under the impression when the case was briefed and argued in this court that there was no record of the evidence presented to the magistrate judge. After oral argument in this court, the parties learned that a record had been made of the proceedings before the magistrate judge and was available to be transcribed. The State requested permission to have the transcript prepared and filed with this court.
This court has consistently held that new evidence cannot be presented for the first time on appeal. See Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 782, 740 P.2d 1089 (1987). The record of proceedings before the magistrate judge was never presented to the district judge and therefore will not be considered by this court.
The stipulated facts form a sufficient basis for the district court and this court to render a decision. This is so even though the State in at least one area has not offered sufficient evidence in the record on appeal to support its position.
I. CITIZEN’S ARREST
The State concedes that the Osage City police officers were not acting within their jurisdiction pursuant to K.S.A. 22-2401a(2) when they arrested the defendant in Lyndon. They were outside the city limits of Osage City, and there was no request for assistance from Lyndon or Osage County law enforcement, nor were they in fresh pursuit.
The State acknowledges this court’s decision in Hennessee but distinguishes it and instead relies on this court’s earlier decision in State v. Shienle, 218 Kan. 637, 545 P.2d 1129 (1976). Shienle involved a car stolen in Prairie Village, Kansas. The suspect was the victim’s ex-husband. The victim informed police of a Missouri bar the suspect frequented. A Prairie Village officer located the car across the state line in Kansas City, Missouri. The officer requested the assistance of Missouri police, who confirmed that the car was reported as stolen. The Missouri officer advised the Kansas officer that he would patrol the area and that the Kansas officer should call him by radio if he needed assistance. The Missouri officer also advised the Kansas officer that if the suspect showed up and attempted to flee, the suspect should be detained until help arrived. When the suspect showed up, touched the door handle of the car, and then proceeded down an alley, the Kansas officer ordered the suspect to stop. He identified himself as a police officer and ar rested the suspect, at one point drawing his service revolver. The Missouri officer arrived and advised the suspect of his rights. The suspect admitted he was in possession of the car, but the trial court suppressed the confession, holding that the statement was the fruit of an illegal arrest in Missouri. 218 Kan. at 638-39.
This court concluded that the arrest was legal. 218 Kan. at 639. This court recognized that generally a police officer acting within his official capacity cannot make an arrest outside the jurisdiction from which his authority is derived but then stated:
“An officer who makes an arrest without a warrant outside the territorial limits of his jurisdiction must be treated as a private person. His actions will be considered lawful if the circumstances attending would authorize a private person to make the arrest. [Citations omitted.]
“It is generally understood a private citizen may arrest another person when a felony has been or is being committed and die person making the arrest has probable cause to believe that the arrested person is guilty thereof; or when any crime has been or is being committed by the arrested person in die view of the person making the arrest. (See K.S.A. 22-2403; 5 Am. Jur. 2d, Arrest, § 34, p. 726.)” 218 Kan. at 640.
Looking at Missouri law, this court cited State v. Fritz, 490 S.W.2d 30 (Mo.), cert. denied 411 U.S. 985 (1973), which held that a warrantless arrest for a felony in Missouri by a federal treasury agent acting outside his official jurisdiction is legal when made upon probable cause. This court also recognized that warrantless arrests by police officers in foreign jurisdictions have been justified as arrests by private citizens in other states, citing cases from California and Delaware. 218 Kan. at 641.
This court determined that the Kansas officer had probable cause to believe the defendant had committed a felony in Missouri (bringing stolen property into the state) as well as in Kansas by stealing the car from his former wife and driving it into Missouri. This court also pointed out that the actions of the Kansas officer were reasonable and justifiable. He enlisted the help of the Missouri police and then arrested the defendant before defendant could make his escape. 218 Kan. at 642. The Missouri police officers were immediately notified of the arrest. This court adopted the following test:
■ “When an arrest without a warrant is made by a Kansas police officer outside the territorial limits of his jurisdiction the arrest may be a legal private citizen’s arrest when it is established that: (1) arrests by private citizens are recognized as legal in the state where the arrest is made; (2) a felony has been or was being committed in that state; (3) the arresting officer had probable cause to believe the person arrested is guilty thereof; and (4) the officer acted reasonably under the exigencies attending the arrest.” 218 Kan. at 642-43.
The State contends that the case at bar is more similar to Shienle than to Hennessee. Its argument is that the defendant’s warrantless arrest by an Osage City police officer outside his jurisdiction was lawful as a citizen’s arrest. K.S.A. 22-2403 provides for arrests by private persons:
“A person who is not a law enforcement officer may arrest another person when:
(1) A felony has been or is being committed and the person making the arrest has probable cause to believe that the arrested person is guilty thereof; or
(2) any crime, other than a traffic infraction, has been or is being committed by the arrested person in the view of the person making the arrest.”
We note that Hennessee did not discuss whether the defendant’s arrest in Stafford County by the Pratt County sheriff may have been lawful as a citizen’s arrest. The argument was simply not made to this court.
The defendant argues that the plain language of K.S.A. 22-2403 shows it does not apply to his arrest by an Osage City police officer. The defendant highlights the opening language of the statute: “A person who is not a law enforcement officer . . . .” The defendant reasons that a person who is a law enforcement officer remains a law enforcement officer even when outside the officer’s normal jurisdiction. He contends that because the person who arrested him was a law enforcement officer, 22-2403 clearly does not apply.
The defendant’s argument is incorrect. Although K.S.A. 22-2403 does not specifically define the term “law enforcement officer,” the definition of that term for purposes of the Kansas code for criminal procedure, including K.S.A. 22-2403, is found in K.S.A. 1993 Supp. 22-2202(13):
‘Law enforcement officer’ means any person who by virtue of office or public employment is vested by law with a duty to maintain public order or to make arrests for violation of the laws of the state of Kansas or ordinances of any municipality thereof . . . while acting within the scope of their authority.”
Because Officer Mitalski was not acting within the scope of his authority pursuant to K.S.A. 22-2401a at the time of the defendant’s arrest, Officer Mitalski was not a law enforcement officer as that term is used in K.S.A. 22-2403. A law enforcement officer cannot be deemed to have given up the rights he or she would enjoy as a citizen merely by virtue of being employed as a law enforcement officer. Officer Mitalski was eligible to make a citizen’s arrest pursuant to K.S.A. 22-2403 when acting outside the scope of his powers under K.S.A. 22-2401a.
As recognized by this court in Shienle, 218 Kan. at 640-41, the general rule is that a law enforcement officer who makes a warrantless arrest outside the territorial limits of the officer’s jurisdiction must be treated as a private person. That court cited the following: People v. Alvarado, 208 Cal. App. 2d 629, 25 Cal. Rptr. 437 (1962), cert. denied 374 U.S. 840 (1963); People v. McCarty, 164 Cal. App. 2d 322, 330 P.2d 484 (1958); State v. Hodgson, 57 Del. 383, 200 A.2d 567 (1964); McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79 (1906); and 5 Am. Jur. 2d, Arrest § 50, p. 742. Other cases holding that arrests by law enforcement officers outside their assigned jurisdictions were lawful as citizen’s arrests include the following: State v. Goldberg, 112 Ariz. 202, 540 P.2d 674 (1975); Phoenix v. State, 455 So. 2d 1024 (Fla. 1984); State, Dept. of Public Safety v. Juncewski, 308 N.W.2d 316 (Minn. 1981); State v. MacDonald, 260 N.W.2d 626 (S.D. 1977).
This court in Shienle recognized that an arrest by a Kansas law enforcement officer outside the officer’s jurisdiction was lawful as a citizen’s arrest. The defendant distinguishes Shienle as relying on Missouri, rather than Kansas, law to justify the arrest as a citizen’s arrest. That is a distinction without a difference. Like Missouri, Kansas recognizes the validity of citizen’s arrests. K.S.A. 22-2403. A citizen’s arrest may be effected when a felony has been committed and the person making the arrest has probable cause to believe the person arrested is guilty of that felony or when any crime except a traffic infraction has been or is being committed by the arrested person in the view of the person making the arrest.
Here, we need look no further than the probable cause issue. According to the stipulation, the officers had actual knowledge a burglary and theft had occurred in Osage City. A juvenile being investigated for an unrelated burglary told a third officer, who relayed the information to the arresting officers, “that the defendant herein may have been involved” in the Osage City burglary and theft. (Emphasis added.) That someone not involved in a burglary and theft tells a third person that someone else may have been involved in a specific burglary and theft would not lead a reasonably cautious law enforcement officer to believe reasonable grounds existed to arrest the person so named.
We were led to believe from the briefs and oral argument that evidence was introduced before the magistrate judge that would provide probable cause, but the stipulation does not contain any evidence showing probable cause. Since there is no probable cause in the record on appeal to support a citizen’s arrest, we cannot uphold the defendant’s arrest as a citizen’s arrest on the record before us.
We need not address the defendant’s “under color of office” argument, which should be considered by the district judge on remand. See, for example, Phoenix v. State, 455 So. 2d at 1025.
The defendant also argues that Officer Mitalski did not act under exigent circumstances in arresting him, a requirement imposed by Shienle. The Kansas citizen’s arrest statute, K.S.A. 22-2403, contains no requirement that a citizen’s arrest be made under exigent circumstances, nor is such a requirement in the cases from other jurisdictions. However, in the interest of safeguarding against improper use of police power, such a requirement maybe appropriate when a law enforcement officer makes a citizen’s arrest. There is no information in the record concerning whether the defendant’s arrest here was made under exigent circumstances. The facts do show that the arrest was made in the early hours of the morning and that the officers felt there was enough information to obtain an arrest warrant after information was obtained from juveniles interrogated about an unrelated case. The defendant reasons that the arrest was not made in good faith because, rather than obtaining an arrest warrant, the Osage City officers left their jurisdiction under the “guise” of an investigation in order to defeat the territorial limits of K.S.A. 22-2401a. The fact that the officers elected to proceed without an arrest warrant does not show bad faith. There may have been exigent circumstances because rather than take the time to obtain an arrest warrant, the defendant’s immediate arrest was necessary in order to prevent the defendant from disposing of any stolen property he might have had in his possession should he find out that he had been “ratted on.”
The district court erred in finding that the defendant’s arrest was unlawful under Hennessee. On remand, the court should consider whether the arrest was valid as a citizen’s arrest in accordance with this opinion.
II. DISMISSAL OF CHARGES
The State also argues that even if the defendant’s arrest was unlawful, dismissal of the charges was an inappropriate remedy. In Hennessee, this court affirmed the district court’s dismissal of charges where the defendant’s arrest was unlawful pursuant to K.S.A. 22-240la. However, in Hennessee, neither the parties nor this court discussed whether another remedy, such as suppression of evidence, would have been a more appropriate remedy. Hennessee provides no authority for dismissal of charges as the only remedy for an unlawful arrest.
This issue was squarely addressed by this court in State v. Weis, 246 Kan. 694, 792 P.2d 989 (1990). Weis was detained and questioned without probable cause and arrested after she made incriminating statements. The trial court dismissed the complaint. This court stated:
“We agree with the trial court’s determination that without probable cause the officers had illegally seized Weis. But that finding alone does not prevent Weis from being prosecuted. Jurisdiction of a court to try a person accused of a crime is not divested by the fact he or she may have been unlawfully arrested. United States v. Crews, 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244 (1980), cited in State v. Hammond, 4 Kan. App. 2d 643, 645, 609 P.2d 1171, rev. denied 228 Kan. 807 (1980); State v. Addington, 205 Kan. 640, 644, 472 P.2d 225 (1970); Hanes v. State, 196 Kan. 404, 411 P.2d 643 (1966); State v. Cook, 194 Kan. 495, 399 P.2d 835 (1965). An unlawful arrest, without more, does not give the accused immunity from prosecution nor provide a defense to a valid conviction.” 246 Kan. at 697.
This court agreed with the district court’s determination that Weis’ statements were tainted by the illegal arrest and therefore inadmissible. This court then stated:
“There is no statutory authority for the trial judge to dismiss the complaint against this defendant because of the illegal arrest. Illegal detention does not in itself mandate the charges being dismissed. See State v. Addington, 205 Kan. at 645 (unlawful arrest where substantial rights are prejudiced vitiates a conviction); State v. Hammond, 4 Kan. App. 2d at 645-46 (evidence seized at time of unlawful arrest is inadmissible). The usual sanction for an illegal arrest is not the dismissal of the charges against the accused, but a prohibition against the introduction into evidence of statements or admissions made by the defendant while in custody.
“Though the trial judge correctly prohibited the introduction into evidence of the statements made by Weis while illegally held in custody, the judge abused his discretion by dismissing the charges against the defendant. The sanction of dismissing a criminal complaint is one that should be used ‘only under extremely compelling circumstances.’ State v. Crouch & Reeder, 230 Kan. 783, 788, 641 P.2d 394 (1982). Under the facts, Weis’ unlawful arrest did not give her immunity from prosecution. The State may still have sufficient evidence, not tainted by the illegal arrest, to try the defendant.” (Emphasis added.) 246 Kan. at 699.
The defendant distinguishes Weis because there, the defendant’s arrest was unlawful because the police did not have probable cause, whereas here, the defendant’s arrest was unlawful because the police violated the scope of their authority pursuant to K.S.A. 22-2401a. The defendant’s argument seems to be that an arrest outside the officer’s jurisdiction is more egregious than an arrest without probable cause; therefore, in the former instance dismissal is necessary, whereas in the latter a lesser remedy may be appropriate. An arrest with probable cause outside the officer’s jurisdiction seems, if anything, less egregious than an arrest made in the officer’s jurisdiction but without probable cause. In either scenario, Weis makes it clear that dismissal of a criminal complaint lies in the trial court’s discretion and is appropriate “only under extremely compelling circumstances.”
“[I]t is generally accepted that the illegal arrest does not affect the power of the state to proceed with the prosecution. That is, an illegal arrest does not divest the trial court of jurisdiction over the defendant or otherwise preclude his trial.” 1 LaFave, Search and Seizure § 1.9 (2d ed. 1987). See Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975); Mahon v. Justice, 127 U.S. 700, 32 L. Ed. 283, 8 S. Ct. 1204 (1888); Ker v. Illinois, 119 U.S. 436, 30 L. Ed. 421, 7 S. Ct. 225 (1886); United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied 421 U.S. 1001 (1975). See also United States v. Alvarez-Machain, 504 U.S. 655, 119 L. Ed. 2d 441, 112 S. Ct. 2188 (1992) (court found to have jurisdiction despite defendant’s forcible abduction from Mexico).
The rule is that if the accused is in the jurisdiction of the court, the court has jurisdiction to try the accused regardless of how the accused was brought into the jurisdiction. There are exceptions, such as when an accused has been tortured by law enforcement personnel, etc., none of which occurred in Hennessee or in the case at bar. An unlawful arrest may affect the admissibility of evidence.
The compelling circumstances necessary to justify dismissal are not present here. Even if the defendant was unlawfully arrested, there is no indication that the State lacked sufficient evidence to try the defendant for the crimes with which he was charged. The magistrate judge abused his discretion in dismissing the charges against the defendant, and the district judge erred in denying the State’s appeal.
Suppression of any statement the defendant made at the time of the defendant’s arrest may be appropriate, as well as applying the fruit of the poisonous tree doctrine. Neither the magistrate judge nor the district judge addressed suppression and there has been no indication whether any evidence may have been the product of an unlawful arrest. It is left to the district judge to determine whether any evidence should be suppressed.
To the extent State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983), is inconsistent with any part of this opinion, it is overruled.
Reversed and remanded.
Holmes, C.J., and Allegrucci, J., concur in the result.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals his convictions and sentence imposed on 12 counts of aggravated robbery, K.S.A. 21-3427. On appeal, the defendant claims: (1) his sentence violates the constitution; reflects partiality, prejudice, or corrupt motive of the judge; and violates the requisite considerations of K.S.A. 21-4601; (2) law enforcement officers used excessive force in executing a search warrant; (3) the judge failed to instruct on a lesser included crime; (4) the judge improperly instructed the jury on criminal intent; and (5) defendant was denied meaningful access to the court.
Michael McCloud was convicted of 12 separate aggravated robberies of convenience stores, grocery stores, and restaurants committed between September 1990 and January 1991. McCloud was originally sentenced to consecutive terms of 15 years to life on each conviction, for a controlling term of 180 years to life. McCloud’s sentence was later modified to consecutive terms of 8 years to life on each count, for a controlling term of 96 years to life. The facts surrounding each robbery are not at issue in this appeal and therefore are not discussed except where pertinent to the analysis of those issues which have been raised.
Cruel or Unusual Punishment
McCloud argues that his controlling sentence of 96 years to Me is so excessive and disproportionate Lo his crimes that it constitutes cruel or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights. Although the Kansas constitutional prohibition against cruel or unusual punishment is directed primarily at the kind of punishment imposed rather than its duration, the length of a particular sentence may be so excessive as to constitute cruel or unusual punishment. State v. Strauch, 239 Kan. 203, 220, 718 P.2d 613 (1986); State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980).
This court has previously recognized that the imposition of consecutive sentences does not per se constitute cruel or unusual punishment. State v. Tyler, 251 Kan. 616, 647, 840 P.2d 413 (1992) (controlling sentence of 111 to 330 years held not to violate § 9 of Kansas Constitution Bill of Rights); In re MacLean, 147 Kan. 678, Syl. ¶ 4, 78 P.2d 855 (1938) (consecutive sentences following guilty verdicts held not to violate constitutional provision forbidding cruel or unusual punishment).
In determining whether the length of a sentence offends the constitutional prohibition against cruel or unusual punishment, three factors are considered: (1) the nature of the offense and tire character of the offender, with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, tire violent or nonviolent nature of the offense, the extent of the offender’s culpability for any resulting injury, and dre penological purposes of the prescribed punishment; (2) a comparison of the penalty with punishments imposed in this jurisdiction for more serious offenses, and if among drenr are found more serious crimes punished less severely than the offense in question, the challenged penalty is to that extent suspect; and (3) a comparison of the penalty widr punishments in other jurisdictions for the same offense. State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
McCloud presented no evidence regarding the third factor set fordi in Freeman but argues that evaluation of the first two factors reveals that the sentence imposed is so excessive and disproportionate that it constitutes cruel or unusual punishment. Considering the first Freeman factor, the nature of the offense and the character of the offender, McCloud argues that the district judge failed to consider that no one was injured, he verbally threatened the victims in only 3 of the 12 robberies he committed, he displayed a gun in a threatening manner in only 5 of the 12 incidents, and he took only $11,000 to $12,000, not hundreds of thousands of dollars. McCloud further points out that these are his first convictions, there is nothing in his background to indicate a violent disposition or evidence of a drug or alcohol problem, and letters from supervisors in prison indicate he has been a model prisoner and helpful to others.
McCloud’s arguments are most unusual and not convincing. McCloud committed 12 separate aggravated robberies over a period of several months. While he may have displayed a gun in less of a drreatening manner during some of the robberies, there is no question that McCloud wore a mask and held a loaded gun during each crime. The evidence at trial indicates that had someone resisted, there could have been serious injury or death. We have recognized that aggravated robbery' committed with a firearm is an inherently dangerous felony regardless of whether anyone is injured by the firearm. McDaniel & Owens, 228 Kan. at 185. During direct examination by the prosecutor, the defendant’s girlfriend, who had participated in several of the robberies, testified:
“A. Before lie would rob a place as he was loading die guns he would wipe die bullets off real good so there weren’t any fingerprints on the bullets if he had to use it. If he got bank bags, he’d always wipe die bank bags down real good and carry them witii a tcwel or rag or something so diere would never be fingerprints on them.
“Q. So w'ere die weapons always loaded tiiat he used?
“A. Yes, sir, tiiey w'ere.”
The amount of money taken in an aggravated robbery has little bearing on the punishment imposed for this particular crime. Had more money been available, McCloud’s proceeds from the aggravated robberies would have been greater. See 228 Kan. at 185. As to McCloud’s character, the presentence investigation report indicates McCloud exhibits no remorse for his crimes.
When a sentence'is fixed by the trial judge within permissible limits of the applicable statutes, the sentence is not erroneous. In the absence of special circumstances showing an abuse of judicial discretion, it cannot be determined on appeal that such a sentence is excessive or so disproportionate to the offense to constitute cruel or unusual punishment. State v. Pettay, 216 Kan. 555, Syl. ¶ 4, 532 P.2d 1289 (1975). Under the statutes applicable at the time of McCloud’s crimes, aggravated robbery was a class B felony and had a minimum sentence of 5 to 15 years and a maximum sentence of 20 years to life. See K.S.A. 21-3427 and K.S.A. 21-4501. McCloud’s ultimate sentence of eight years to life for each aggravated robbery is well within the court’s discretion.
As to the second Freeman factor, McCloud argues that the sentencing judge failed to consider that an individual who commits five first-degree or second-degree murders and is sentenced to maximum consecutive terms of imprisonment for those murders would receive a lesser sentence than the sentence imposed upon him. McCloud speculates that because his controlling term of imprisonment is longer than that imposed on a multiple murderer, the length of his sentence is cruel or unusual, and he should be resentenced.
McCloud’s rationale that an individual sentenced for 5 murders would receive a lesser sentence than the sentence imposed on him for 12 separate aggravated robberies is not the type of comparison required by Freeman. Taken to its extreme, McCloud’s reasoning would compel resentencing if a defendant convicted of numerous class B felonies could show that another who had committed fewer class A felonies had received a lesser penalty. McCloud’s rationale fails to prove that the sentence imposed for 12 separate aggravated robberies was cruel or unusual punishment.
In his pro se brief, McCloud observes that § 9 of the Kansas Constitution Bill of Rights prohibits cruel or unusual punishment, as opposed to cruel and unusual punishment, prohibited by the United States Constitution. McCloud asserts that his sentence is unusual because, given his age and the life expectancy of an inmate in confinement, the sentence imposed guarantees that he will die in prison.
The fact that the minimum sentence imposed by a trial court exceeds the life expectancy of the defendant is not grounds, per se, for finding that the sentence is oppressive or constitutes an abuse of discretion. State v. Tyler, 251 Kan. at 647. Applying the three-pronged test of Freeman to this case, we find that a sentence of 96 years to life for 12 separate aggravated robberies is not so cruel or unusual either in its method or its length that it shocks the conscience and offends fundamental notions of human dignity so as to be constitutionally impermissible.
Comments by the Judge
McCloud asserts that comments by the judge at sentencing and the hearing on the motion to modify his sentence reflect the judge’s incorrect assessment of the facts and disclose that the judge was partial, prejudiced, and had a corrupt motive. He states that tire judge inaccurately commented on the type of gun involved in the robberies, on whether the gun was loaded, and on whether he pointed a gun at each of the victims. McCloud asserts that the judge improperly speculated as to his motive for committing the crimes (i.e., that McCloud had apparently chosen to take up the profession of armed robbery instead of working), as to whether serious injury could have been inflicted (i.e., that McCloud made it clear that if anyone resisted they would be harmed), and as to whether he could compensate the victims.
McCloud particularly objects to the following statements of the judge at sentencing:
“Each of these offenses are completely separate and apart. The victims were confronted in the most threatening manner. They lost substantial sums of money through no fault of their own. There is no excuse or justification for your activities, sir. There is apparently no remorse and you maintain in die face of the evidence that this court finds to be overwhelming that you w'ere not involved. You have taken that position to a point of folly and the court considers that in assessing the sentence being imposed herein.”
At the sentence modification hearing, the judge stated:
“[Kjeeping in mind the Court’s primary goal is not just to protect society from this individual, at this juncture the defendant has not offered much by way of mitigating circumstances. Be that as it may, the Court does not believe diat its role is to be vindictive and the court W'ould, therefore, modify the sentence so that defendant’s minimum term shall be eight years per each count consecutive to each other. That wall allow' the defendant at least an opportunity for probation or parole at a very old age, and quite frankly, that is in keeping with the Court’s goal diat the statistics are once die defendant passes die age of fifty to sixty, diere is very litde likelihood of repetitious criminal behavior.”
Comments by the sentencing judge which are based entirely on evidence presented to the court in its judicial capacity do not necessarily prove that the sentence imposed was improper or reflect partiality, prejudice or corrupt motive by the judge. See State v. Tran, 252 Kan. 494, 509, 847 P.2d 680 (1993); State v. Griffen, 241 Kan. 68, 72-73, 734 P.2d 1089 (1987). The evidence is that the guns McCloud used were loaded. Whether the judge at sentencing mischaracterized the type of firearm McCloud used or whether the gun was pointed at each victim in the commission of each crime is not relevant. A conviction for aggravated robbery, K.S.A. 21-3427, does not depend upon the type of the firearm or where it was pointed during the commission of the robbery. The statute merely requires the person committing the robbery to be armed with a dangerous weapon.-The facts clearly indicate that McCloud displayed a loaded firearm in each of the 12 rob beries, McCloud pointed the firearm at the victim during some of the robberies, and in every robber)' the firearm was displayed in a threatening manner.
McCloud fails to prove that the sentencing judge improperly speculated as to his motive for committing the crimes or as to whether there could have been serious injury. McCloud incorrectly claims that the court opined that McCloud would not be able to compensate the victims. The judge merely stated, “I don’t think there is any basis for believing that [compensation pursuant to K.S.A. 21-4606(2)(g)] is going to be a significant factor in this matter.” Later in the hearing the judge stated:
“[G]iven your attitude as reflected here today, given the circumstances of these offenses, I do not believe that you deserve the right to be free to perpetrate harm and possibly injure or kill another individual. The Court would also find but not order that there is restitution due in the amount of $6,792.36. Pursuant to Kansas law, that finding is simply a finding by die Court and [die] Court has no authority to order restitution and sentence you to prison at the same time.”
The judge’s comments concerning McCloud’s refusal to accept responsibility for his crimes, whether the court would modify sentence, and McCloud’s likelihood of parole after modification do not indicate partiality, prejudice, or corrupt motive on the part of the court, but represent a concern for the protection of society from repetitious criminal behavior such as McCloud displayed. McCloud fails to demonstrate any partiality, prejudice, or corrupt motive by the judge when imposing the sentence.
KS.A. 21-4601
McCloud claims drat the trial court abused its discretion in failing to consider his individual characteristics, circumstances, needs, and potentialities at the original sentencing hearing. K.S.A. 21-4601. McCloud argues that the sentence imposed by the judge is not suited to his individual characteristics and that he has been “overpunished.” McCloud asserts that the modification of his sentence from 180 years to life to 96 years to life was “literally useless.”
It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering the sentencing factors set forth in K.S.A. 21-4606(2), all the reports, the defendant’s background, the facts of the case, and the public safety. K.S.A. 21-4601 states the objectives of the corrections system but does not require the sentencing court to specifically consider those objectives as it must the factors in K.S.A. 21-4606. State v. Webb, 242 Kan. 519, 530, 748 P.2d 875 (1988). See State v. Richard, 252 Kan. 872, 850 P.2d 844 (1993). 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, Syl. ¶ 1, 847 P.2d 1286 (1993). When a reviewing court determines that no reasonable person would agree with the trial court’s decision, then an abuse of discretion will be found. State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990).
In sentencing McCloud, the district court expressly considered K.S.A. 21-4606(1) and each factor in 21-4606(2). Contrary to McCloud’s assertion, the court did take into consideration the fact that he had no prior criminal history. The court also noted that McCloud committed 12 separate robberies with a loaded weapon, that there were numerous people at risk, and that on several occasions it was apparent that had someone resisted, there could have been serious injuiy. Speaking to McCloud, the court stated: “You certainly made it clear that should anyone resist, they would be harmed.” The court found there was no excuse or justification for McCloud’s conduct, that the victims of McCloud’s crimes did not induce or facilitate the commission of the robberies, and that compensation was not a significant factor. The trial court in sentencing McCloud followed the policy set forth in K.S.A. 21-4601 and did not abuse its discretion.
Excessive Force In Executing A Search Warrant
On appeal McCloud argues that the police used unnecessary and unreasonable force in executing a search warrant at his residence and, thus, violated his rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Con stitution Bill of Rights. McCloud did not raise this issue before the trial court or object to the evidence obtained as a result of the search. Under the criminal code, prior to trial a defendant may move to suppress evidence obtained by an unlawful search and seizure. The motion shall be in writing and state facts showing the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion. The burden of proving that the search and seizure were lawful is on the prosecution. The motion shall be made before trial, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion. K.S.A. 22-3216(1), (2), and (3). McCloud asserts that even though he failed to raise the issue at the trial level, in the interest of justice this court must determine whether he was denied his constitutional rights.
Ordinarily, a defendant cannot raise an issue on appeal which was not presented to the trial court. Only where consideration’ of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights may an appellate court consider an issue not raised in the trial court. See State v. Clemons, 251 Kan. 473, 483, 836 P.2d 1147 (1992); State v. Puckett, 230 Kan. 596, Syl. ¶ 1, 640 P.2d 1198 (1982). Because McCloud failed to object at trial, the merits of McCloud’s argument are subject to harmless error analysis. Under Chapman v. California, 86 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), an appellate court may not hold a federal constitutional error harmless unless there is little likelihood, if any, of the error having changed the result of the trial, and the court is convinced of such belief beyond a reasonable doubt. See State v, Rupert, 247 Kan. 512, Syl. ¶ 4, 802 P.2d 511 (1990).
In State v. Turner, 257 Kan. 19, 891 P.2d 317 (1995), this court discussed the exclusionary rule and its purpose. We noted that according to the Fourth Amendment of the United States Constitution, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of an illegal search and seizure. United States v. Calandra, 414 U.S. 338, 347, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974).
The Turner court observed that the primary purpose of the exclusionary rule is to deter unlawful police conduct. The rule “is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. at 348. “The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960).
The Turner court stated that the rule is neither to be imposed in a vacuum nor administered mechanically. Rather, it should be applied in light of its deterrent purpose. See United States v. Calandra, 414 U.S. at 348; United States v. Winsett, 518 F.2d 51 (9th Cir. 1975). Any extension of the rule beyond its traditional applicability in criminal proceedings is warranted only where the use of the remedy would result in appreciable deterrence of police misconduct. United States v. Leon, 468 U.S. 897, 909, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). Thus, in deciding whether to extend the exclusionary rule, the likelihood that the rule’s deterrent effect will be achieved should be balanced against the cost of withholding reliable information from the truth-seeking process. Illinois v. Krull, 480 U.S. 340, 347, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987); United States v. Calandra, 414 U.S. at 351-52.
The question in Turner was whether evidence seized from a probationer through a search warrant that contained false information should be barred by the exclusionary rule. The Turner court decided that, generally, evidence illegally seized from a probationer is not barred from a probation revocation proceeding by the exclusionary rule. The bare fact that the officer or officers acting unlawfully knew of the defendant’s probationary status is insufficient to create an exception thereto. It concluded, however, that an exception may be warranted if the court finds, under the totality of the circumstances, that the police misconduct was so egregious that its deterrence outweighs the court’s need for information. 257 Kan. at 27.
K.S.A. 22-2508 states that “[a]ll necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search-warrant.” The police executed a search warrant at McCloud’s residence just after midnight by throwing a “flash bang” through a side window as a diversionary tactic and entering the residence through the front door. A flash bang is an explosive device which makes a bright flash and a loud noise and is designed to startle a building’s occupants. An officer testified at trial that the police chose this manner of executing the search warrant because of the serious nature of McCloud’s crimes, because McCloud had used a firearm in the commission of the robberies, and for the safety of the officers executing the search warrant and the surrounding neighborhood. McCloud was arrested without incident.
Prior to our discussion of this issue, it is interesting to note that the language of K.S.A. 22-2405(3) dealing with force that can be used in effecting an arrest is similar to that used in K.S.A. 22-2508 dealing with execution of a search warrant. K.S.A. 22-2405(3) provides that all necessary and reasonable force may be used to effect an entry upon any building or property or part thereof to make an authorized arrest. Neither statute states the degree of force an officer may use. K.S.A. 1993 Supp. 21-3215, which provides that standard, states that a law enforcement officer making a lawful arrest need not retreat or desist from making a lawful arrest because of resistance or threatened resistance to the arrest. An officer is justified in the use of any force which such officer reasonably believes to be necessary to effect the arrest or to defend the officer’s self from bodily harm while making the arrest. The officer is justified in using force likely to cause death or great bodily harm if the officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance, or the suspect is attempting to escape by use of a deadly weapon.
This court previously considered whether the evidence seized should be excluded when an officer used unnecessary and un reasonable force in executing a search warrant. See State v. Tyler, 251 Kan. 616, 633-34, 840 P.2d 413 (1992). In that case, a team of officers involved in a narcotics investigation were executing a search warrant. Just as the officers opened the screen door, someone inside opened the inner door. Without knocking, the officers entered the residence through the open door, shouting to identify themselves. In his motion to suppress the evidence seized, Tyler contended that the officers should have announced their presence, authority, and purpose prior to entering the residence. Tyler argued that the officers used excessive force when executing the search warrant in violation of the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights.
The Tyler court noted that much of the defendant’s argument was based upon the United States Supreme Court decision in Sabbath v. United States, 391 U.S. 585, 20 L. Ed. 2d 828, 88 S. Ct. 1755 (1968). The Tyler court observed that in Sabbath the customs agents were subject to 18 U.S.C. § 3109 (1988), which allowed an officer to break into a house to execute a search warrant “if, after notice of his authority and purpose, he is refused admittance.” In Sabbath, United States customs agents entered the defendant’s apartment by opening the closed but unlocked door. The United States Supreme Court found the custom agents’ entrance violated § 3109 and that no exception to the statute was justified, and suppressed admission of the evidence.
In determining if Sabbath applied to the states, the Tyler court observed that in Ker v. California, 374 U.S. 23, 34, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963), the United States Supreme Court announced that states could develop their own rules governing search and seizure as long as those rules follow the constitutional prohibition against unreasonable searches and seizures. In Ker, a law enforcement officer failed to knock and announce because he believed that Ker possessed narcotics that could easily be destroyed and the officer believed that Ker was expecting him. The Court found the officer’s conduct was reasonable under the circumstances and did not violate the Fourth Amendment. 374 U.S. at 40-41.
The Tyler court concluded that although searches must be reasonable, as required by the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights, 18 U.S.C. § 3109 does not apply to the states. It noted that in Kansas, K.S.A. 22-2508 allows all necessary and reasonable force to be used to effect an entry into any building or property or part thereof to execute a search warrant. It determined that the Kansas Legislature has not adopted a knock and announce rule. After noting that the officers knew a bodyguard who carried a hammer would be at the front door and that another person in the house was known to carry a gun, the Tyler court held that the execution of the search warrant was reasonable. 251 Kan. at 634-35.
McCloud attempts to distinguish Tyler by arguing that he was not a narcotics suspect, the manner in which he used the firearm in the robberies did not endanger the victims, and there was no indication that evidence would have been destroyed if the police had knocked and announced their presence. McCloud’s assertion that he never scared his victims with his display of a firearm during a robbery is a misstatement of the facts.
The Tyler court did not decide whether the exclusionary rule applies to an officer’s use of excessive force in executing a search warrant. The question of whether it is necessary to apply an exclusionary rule is determined by weighing the extent to which its application will deter law enforcement officials from using excessive force in executing a valid search warrant against the extent to which its application will deflect the truth-finding process, free the guilty, and generate disrespect for the law and the administration of justice.
We conclude that the exclusionary rule should not apply in this case. We believe that the right to bring a civil action against an officer is usually a sufficient deterrent to an officer’s use of unreasonable force. See Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983) (party has the right to bring a civil action against law enforcement officers who use unreasonable force in making an arrest).
In a separate argument, McCloud asserts that the police committed an “overseizure” when executing the search warrant by seizing items that were not listed in the warrant. He admits in his pro se brief that the police officers were executing a valid search warrant and had the right to be in his residence and seize items particularly Usted in the warrant and items that were in plain view. He does not state which items admitted into evidence he objects to. McCloud failed to object to the introduction of the evidence at trial. McCloud’s contention does not merit consideration.
Lesser Included Offense Instruction
McCloud claims that the trial court erred in failing to instruct the jury on theft by threat as a lesser included crime of aggravated robbery. This court has recently addressed this issue and held that “[t]heft by threat, or extortion, is not a lesser included offense of robbeiy under the provisions of K.S.A. 21-3107(2)(a) or (d).” State v. Blockman, 255 Kan. 953, Syl. ¶ 4, 881 P.2d 561 (1994). See State v. Rader, 256 Kan. 364, 885 P.2d 1222 (1994). The rationale of State v. Blockman controls this issue.
Burden of Proof
McCloud argues that the trial court erred in instructing the jury concerning the State’s burden of proof. The trial court instructed the jury:
“The State has the burden of proving the defendant is guilty. The defendant is not required to prove he is not guilty. You must assume die defendant is not guilty unless die evidence convinces you of die defendant’s guilt.
“Your determination should be made in accordance witii diese instructions, and diis is the test you should apply: If you have no reasonable doubt as to die trutii of any of the claims made by die State, you should find the defendant guilty. If you have reasonable doubt as to any of die claims made by die State, you should find die defendant not guilt)'.” (Emphasis added.)
McCloud did not object to this instruction at trial. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). See State v. Hammond, 251 Kan. 501, Syl. ¶ 4, 837 Kan. 816 (1992).
McCloud contends that the trial court’s use of the emphasized word “should” as opposed to “must” is clearly erroneous. McCloud argues that the words “should” and “must” have two different meanings and that the trial court failed to follow PIK Crim. 3d 52.02 and the statutory language of K.S.A. 21-3109. McCloud admits that the case of State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559 (1978), controls the issue, but submits that the case was wrongly decided and requires re-examination.
In State v. Stuart and Jones, 223 Kan. at 603-04, this court considered the identical arguments that McCloud advances. In that case, the defendants argued that the jury should have been instructed it “must” find the defendants not guilty if there is reasonable doubt, rather than that it “should” find the defendants not guilty if there is reasonable doubt. The defendants further argued that the word “must” was mandatory and complied with the statutory language of K.S.A. 21-3109, while “should” is permissible and does not. This court noted that in State v. Connor, 74 Kan. 898, 87 Pac. 703 (1906), the court held that the word “should” as used in instructions conveys a sense of duty and obligation and could not be misunderstood by a jury. McCloud fails to establish that this court erroneously decided Stuart and Jones.
Intent Instruction
McCloud argues that the trial court failed to correctly instruct the jury regarding criminal intent. McCloud emphasizes that criminal intent is an essential element of every crime and contends that the intent instruction given by the trial court was erroneous, offended due process, and left an essential element of the criminal accusations undecided. McCloud did not object to the instruction at trial.
The trial court instructed the jury as to general criminal intent. The instruction given at trial was a direct quote of PIK Crim. 3d 54.01-A:
“In order for the defendant to be guilty of the crime charged, the State must prove that his conduct was intentional. Intentional means wailful and purposeful and not accidental.
“Intent or lack of intent is to be determined or inferred from all the evidence in die case.”
McCloud fails to note that K.S.A. 21-3201(1) also states: “Criminal intent may be established by proof that the conduct of the accused person was willful or wanton. Proof of willful conduct shall be required to establish criminal intent.” K.S.A. 21-3201(2) further provides that willful conduct is conduct which is purposeful and intentional and not accidental. Thus, the instruction given necessarily required the jury to find that McCloud possessed criminal intent. Moreover, the court specifically enumerated the intent element in each of the 12 instructions for aggravated robbery.
Meaningful Access/Trial Transcript
The Appellate Defender s office was appointed to represent McCloud at his request. That order states: “It is further ordered that upon completion of the record on appeal the Clerk of the District Court shall provide such record to the Appellate Defender s Office.” See K.S.A. 22-4505 and K.S.A. 22-4509. Several requests were made by the Appellate Defender’s office for transcripts of certain proceedings and corresponding certificates of completion. The Appellate Defender’s office filed a brief on behalf of McCloud which includes a 10-page statement of facts and cites to the record.
Subsequent to the appointment of the Appellate Defender, McCloud filed motions to be allowed to file a pro se brief and for a trial transcript. McCloud attached a draft of an order to his motion for a trial transcript which mandated that all trial court records in his case be sent to him. This court granted McCloud’s motion to file a pro se brief and denied his request for the trial transcript. McCloud contends that this court improperly denied his motion for trial transcript, thereby making it impossible for him to compose a detailed statement of the facts necessary to support his pro se arguments. McCloud argues that denial of his transcript precludes him from exhausting his state remedies and therefore denies him access to the federal courts.
McCloud’s appellate counsel had full access to the trial transcript. McCloud cites no authority for the proposition that an additional copy of the record should have been given to him. Furnishing a transcript required for appellate review of a criminal conviction free of charge for an indigent defendant is constitutionally and statutorily required. When the transcript is provided to the indigent defendant’s counsel, the indigent defendant is not entitled to an additional copy of the transcript.
Affirmed.
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The opinion of the court was delivered by
McFarland, J.:
Harold H. Hill appeals from his jury trial convictions of aggravated kidnapping (K.S.A. 21-3421); two counts of aggravated robbery (K.S.A. 21-3427); three counts of rape (K.S.A. 21-3502); three counts of theft (K.S.A. 21-3701[a]); and four counts of aggravated burglary (K.S.A. 1992 Supp. 21-3716).
The convictions herein arise from four incidents occurring in the College Hill area of Wichita in July and August of 1992. These are summarized as follows:
July 16, 1992
S.W. lived alone in her apartment. Around 4:30 a.m. she was awakened by a man sitting on her. He held a knife to her throat. She was gagged and then raped. S.W.’s attacker took her purse, some videotapes, and around $200 in cash. Her telephone cord had been cut.
July 21, 1992
Kristin Pelowski, Sonja Tucker, and Lisa Fiers rented a house. Each had her own bedroom. The door to Kristin’s bedroom sticks and is hard to open and close. During the early morning hours of July 21, 1992, Kristin was awakened by her door “popping” open. She asked who was there, but received no answer. She then heard footsteps descending the stairs. Assuming one of her roommates was the source of the noises, Kristin went back to sleep.
The next morning Kristin discovered the front door was open and that a pane of glass had been removed from the back door. The telephone cord had been cut. Missing from the residence were a camera, painkiller medication, a VCR, some videotapes, an extra set of house and car keys which were on a wooden key chain with “Sonja” inscribed thereon, and Sonja’s purse which had contained $30-$40. A fingerprint was taken from the removed glass pane. The print was later matched to that of defendant’s left thumb.
August 24, 1992
During the early morning hours of August 24, 1992, C.B., who lived alone in her apartment, was awakened by a man leaning over her bed. The man held a gun on her. He told her if she would be quiet she would not be hurt. The man tied C.B.’s hands behind her back with loop-knotted twine and raped her. The man dumped the contents of C.B.’s purse on the floor and again raped C.B. C.B. complained that he was hurting her and offered to masturbate her attacker. The man then freed her hands. C.B. felt bumps on the underside of her attacker’s penis. The man then raped C.B. again. His gun was against C.B.’s head. She touched the gun and pulled the trigger. C.B. testified it sounded like a toy gun or cap pistol. This angered her attacker, who beat C.B.’s face until she stopped struggling. He then tied C.B.’s hands and ankles and gagged her.
Later, when C.B. had freed herself, she discovered her TV, VCR, stereo and speakers, videotapes, and the contents of her purse, including her wallet, were missing.
August 29, 1992
During the early morning hours of August 29,1992, Nancy Fesler was asleep on the living room couch of her apartment. She awakened to see a man about 3-4 feet away. He had moved her stereo equipment and telephones into the middle of the room, with their cords wrapped for transport. The man went into the kitchen. Nancy checked her purse and found her house and car keys were missing. She went upstairs and dialed 911.
The first police car arrived in time for the officer to see Nancy’s automobile leaving her driveway. The officer gave chase. Nancy’s automobile was abandoned after it hit a parked Jeep. A search of the area disclosed defendant hiding behind a bush. On his person were a pocket knife, a steak knife (identified as Nancy’s), Nancy’s television remote control, a toy gun, lengths of slip-knotted twine, and $132 in cash. In Nancy’s vehicle were her stereo equipment and telephones. Nancy later discovered $160 in cash had been taken.
Defendant’s residence was searched. Found in the residence were S.W.’s purse and checkbook, Sonja Tucker’s purse, and C.B.’s wallet and her videotapes, as well as twine identical to that found on C.B.’s bed. After arrest, bumps on defendant’s penis similar to those described by C.B. were observed. An information was filed charging defendant with the 11 felonies and 2 misdemeanors herein. Additional facts will be set forth for the discussion of particular issues.
SPEEDY TRIAL
For his first issue, defendant contends his statutory and constitutional rights to a speedy trial have been violated. We do not agree.
We shall first consider the statutory claim. K.S.A. 22-3402(1) provides:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).’’
Defendant was arraigned on October 26, 1992. His trial commenced on June 14,1993. Defendant’s motion for dismissal under K.S.A. 22-3402(1) was denied on two grounds: (1) a crucial trial continuance was granted by agreement; and (2) defendant was not held in jail solely on the charges herein.
What time should be charged to whom is hotly disputed herein. We find it unnecessary to determine the propriety of the district court’s ruling in that regard and turn instead to the alternative ground found by the district court, namely that the statute did not apply as the defendant was not being held in jail solely on the charges herein.
Evelyn DeLoche testified that defendant was released from prison on March 20, 1991, and that she had been assigned as his parole officer. Defendant was arrested on the charges herein on August 29, 1992. On August 31,1992, she placed a state arrest and detain order against defendant for failure to report his arrest as required by the terms of his parole. Ms. DeLoche further testified that defendant was to be held in jail under the order until his appearance before the Parole Board. She further testified that her order would have stayed in effect even if the State had dismissed the charges herein.
Unless a defendant is being held in jail solely on the charges in the case, the 90-day time limit set forth in K.S.A. 22-3402 does not apply. State v. Goss, 245 Kan. 189, Syl. ¶ 1, 777 P.2d 781 (1989). There was substantial competent evidence supporting the district court’s determination that K.S.A. 22-3402 was inapplicable because the defendant was not being held in jail solely on the charges herein. We find no error or abuse of discretion in the district court’s determination thereof.
Next, defendant argues his right to a speedy trial under the Sixth Amendment to the United States Constitution has been violated.
The leading United States Supreme Court case on the right to speedy trial is Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). In Barker, more than five years elapsed between defendant’s arrest and trial. The United States Supreme Court adopted a case-by-case flexible approach for determining whether an accused’s constitutional right to a speedy trial had been violated, stating:
“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” 407 U.S. at 530.
Less than five months after Barker, we adopted the Barker four-point analysis in State v. Otero, 210 Kan. 530, 502 P.2d 763 (1972). In Otero there was more than an eight-year delay between charges being filed and trial. The court found this delay violated defendant’s right to a speedy trial and reversed his conviction.
In State v. Goss, 245 Kan. at 193, we held: “The length of delay herein — a little over a year between arrest and trial — is not clearly presumptively prejudicial as enunciated by Barker v. Wingo, and hence there is no necessity for inquiry into the other factors that go into the balancing test.”
In the case before us, less than 11 months elapsed between defendant’s arrest and trial. As in Goss, there is no necessity for inquiry into the other factors that go into the balancing test. There is no error or abuse of discretion in the district court’s determination that defendant’s constitutional speedy trial rights had not been violated.
SEVERANCE
For his second issue, defendant contends the district court’s denial of his motion for separate trials of the charges arising from each of the four incidents constitutes an abuse of judicial discretion.
K.S.A. 22-3202(1) provides:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
On June 4, 1993, 10 days before trial was scheduled to begin, defendant filed a motion to sever the charges against him and try them in four separate proceedings. Defendant argued that the four incidents were unrelated to each other, were not of the same or similar character, were not based on the same act, and were not part of any common scheme or plan, and that the cumulative effect of the evidence would be prejudicial to him and prevent him from receiving a fair trial. On June 6, 1993, a hearing was held on the motion. The trial court denied the motion, holding that the counts were all of the same or similar character and they constituted part of a common scheme or plan. The request for separate trials was renewed at trial and, again, denied.
Whether a defendant will be tried on all separate charges in a single trial is a matter within the discretion of the trial court, and its decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion. State v. Crawford, 255 Kan. 47, Syl. ¶ 4, 872 P.2d 293 (1994); State v. Cromwell, 253 Kan. 495, Syl. ¶ 10, 856 P.2d 1299 (1993); State v. Woods, 250 Kan. 109, 116, 825 P.2d 514, cert. denied 121 L. Ed. 2d 100 (1992). If reasonable people could differ about the propriety of the trial court's decision, this court will not find that the trial court abused its discretion. State v. Cromwell, 253 Kan. at 511.
Even if a trial court's consolidation decision is determined to be an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal. State v. Crawford, 255 Kan. at 54; State v. Walker, 244 Kan. 275, 278, 768 P.2d 290 (1989). See State v. Thomas, 206 Kan. 603, 481 P.2d 964 (1971).
The district court held that the four incidents were of the same or similar character and that they constituted parts of a common scheme or plan. There weré many similarities. The four incidents occurred in the same neighborhood within a rather short time span. The residences involved were occupied by women only. The attacker in the two incidents involving rape was similarly garbed. The attacker gagged each woman. Before leaving he made each woman roll over on her stomach and placed a pillow on her head. In the two incidents involving rape, the victims awakened with the attacker on top of or leaning over the would-be victim. In the other two incidents, the woman awoke while the intruder was some distance away, which may have altered the intruder’s plans. Similar items were taken from each residence. The pre-prepared slip-knotted twine also indicated a common plan.
None of the victims herein could identify defendant as their assailant. Identity was the primary issue in the trial. When defendant was arrested after abandoning his last victim’s automobile, he had items on his person taken in the last incident. A search of his residence pursuant to a warrant revealed property taken in each of the other three incidents. Had the four incidents been tried sep arately, a strong argument could have been made by the State that evidence of all crimes should be admissible in all four trials under K.S.A. 60-455 to show identity.
We have declined to find error when a trial court refused to sever charges that were sufficiently similar such that evidence of one would be admissible under 60-455 in the trial of the other and no prejudice would result to the defendant. State v. Cromwell, 253 Kan. at 512.
Instruction No. 24 provides:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged.”
Thus, the jury was instructed each charge had to be considered separately.
We conclude no abuse of discretion has been shown in the district court’s denial of defendant’s motion to sever the charges into four separate trials.
DNA EVIDENCE
For his third issue, defendant contends he was denied a fair trial by virtue of the admission of DNA evidence. He argues: (1) the requirements of the Frye standard were not met, and (2) the evidence was not relevant or material.
The objected-to evidence was the testimony of Dr. Edward Blake, a forensic serologist of Forensic Science Associates in California. Dr. Blake testified that, based upon DNA testing of vaginal swabs taken from C.B., defendant was in the 7% of the male population which could not be excluded as the donor of the semen found therein. The DNA test performed was polymerase chain reaction (PCR) amplification. This is the first time the question of the admissibility of PCR testing has been before us. The other most commonly utilized DNA testing used forensically is restriction fragment length polymorphism (RFLP) analysis.
In Smith v. Deppish, 248 Kan. 217, 807 P.2d 144 (1991), the admissibility of RFLP analysis was before us in a case of first impression. The Frye test was applied thereto. We held, inter alia:
“DNA print testing and the process of Restriction Fragment Link Polymorphism analysis have been recognized as rehable, have gained general acceptance in the scientific community, involve scientifically and professionally established techniques, and, thus, meet the criteria for admissibility under the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).”
“While DNA print testing and the process of Restriction Fragment Link Polymorphism Analysis meet the standard of general acceptance in the scientific community and thus are admissible on that basis, such test results may be inadmissible on grounds of relevancy or prejudice as well as under traditional challenges to admissibility of evidence such as contamination of the sample or chain of custody questions.” 248 Kan. 217, ¶¶ 6, 7.
The mind-boggling technology involved in RFLP analysis is highly summarized in Deppish. Under optimum conditions, this technology has the capability of literally matching a DNA sample to its donor. Although more definitive in its results, RFLP analysis has major drawbacks and limitations. Only a few facilities are capable of proper performance of the testing procedures, which are expensive and time-consuming. Additionally, a substantial amount of the material to be tested is required, and the same must be in good condition.
The newer PCR amplification procedure is less definitive as it can only exclude an individual as being a possible donor of the sample. Thus, the final result is that the tested individual is not the sample donor or the individual is within a certain percentage of the population which could have donated the sample. The advantages of PCR as opposed to RFLP are that it is faster, cheaper, and capable of being performed at more facilities. Additionally, it can test samples too small and/or in too poor a condition to be tested by RFLP analysis.
Little would be gained by an extensive discussion of the scientific concepts involved in PCR amplification. It is sufficient to state that the procedure can cause replification of a targeted section of DNA into a sufficient quantity to be readily analyzed. In State v. Russell, 125 Wash. 2d 24, 882 P.2d 747 (1994), the process was described as follows:
“One microbiologist has described PCR as a genetic photocopy machine. Kamrin T. MacKnight, Comment, The Polymerase Chain Reaction (PCR): The Second Generation of DNA Analysis Methods Takes the Stand, 9 Santa Clara Computer & High Tech. L.J. 287,304 (1993). The PCR amplification system takes advantage of the natural DNA replication system and manipulates it to the advantage of the analyst to produce many millions of DNA copies. MacKnight, at 304.
“ ‘In tire PCR procedure, DNA is extracted from a sample, purified, and added to a buffer solution containing chemical primers and an enzyme called ‘Taq polymerase.’ MacKnight, at 305. The solution is then placed in a heating device called a thermal cycler which cycles it through several successive temperature plateaus. After 30 or 40 of these cycles, the DNA has become denatured and the primers have annealed to it, identifying a ‘gene of interest’ which will have been replicated or amplified by tire enzyme billions of times. Fleming, at 323. In a procedure called the reverse dot-blot process, the amplified DNA is flooded over a nylon membrane onto which have been dotted a number of ‘allele-specific’ probes, each designed to recognize one variant of the ‘gene of interest.’ Fleming, at 323. This may result in a color reaction and a visible dot on the membrane wherever a probe has identified one of the alleles. To determine whether two samples could have come from the same person, the analyst checks whether they have produced the same pattern of dots. If one sample produces a dot in response to a probe to which the other did not react, the samples could not have a common source. Fleming at 323.’ ” 125 Wash. 2d at 38-39.
In Russell, Washington accepted PCR testing.
Defendant contends the trial court erred in concluding that PCR amplification satisfied the principles enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Kansas has repeatedly applied Frye. As we stated in Smith v. Deppish, 248 Kan. at 236:
“The Frye test requires that, before expert scientific opinion may be received in evidence, the basis of that opinion must be shown to be generally accepted as rehable within the expert’s particular scientific field. If a new scientific technique’s validity has not been generally accepted as rehable or is only regarded as an experimental technique, then expert testimony based on its results should not be admitted into evidence. State v. Washington, 229 Kan. 47, Syl. ¶ 1, 622 P.2d 986 (1981).
“The use of the Frye test to determine the admissibility of a he detector examination was considered by this court in State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947). We also apphed the Frye test to determine the admissibility of the Multi-System method of blood analysis of polymorphic enzymes in State v. Washington, 229 Kan. 47, Syl. ¶ 2. Whether the battered woman syndrome had sustained sufficient scientific acceptance to warrant admissibility under the Frye test has been discussed. See State v. Hodges, 239 Kan. 63, 71, 716 P.2d 563 (1986).”
Other states have likewise allowed admission of PCR DNA test results. Harrison v. State, 644 N.E.2d 1243 (Ind. 1995); State v. Moore, 885 P.2d 457 (Mont. 1994); State v. Williams, 252 N.J. Super. 369, 599 A.2d 960 (1991); People v. Palumbo, 162 Misc. 2d 650, 618 N.Y.S.2d 197 (1994); State v. Lyons, 124 Or. App. 598, 863 P.2d 1303 (1993), rev. allowed 319 Or. 406 (1994); Clarke v. State, 813 S.W.2d 654 (Tex. App. 1991), aff'd 839 S.W.2d 92 (Tex. Crim. 1992), cert denied 507 U.S. 996 (1993); Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609, cert. denied 498 U.S. 908 (1990). Although the court in Lyons did not decide admission under the Frye test, general acceptance of the procedure is an element of the evidentiary test. State v. Lyons, 124 Or. App. at 606. The courts in Clarke and Spencer did not use the Fi-ye standard, but, based on expert testimony, both courts found that the PCR tests were sufficiently reliable to be submitted to the jury. Clarke v. State, 813 S.W.2d at 655; Spencer v. Commonwealth, 240 Va. at 98.
The only evidence as to PCR testing and its reliability and acceptance came from the State’s expert, Dr. Edward Blake. Blake has impressive credentials and would appear to be one of the leaders in his field. Blake’s status was demonstrated in State v. Williams, 252 N.J. Super. 369, as follows:
“The State offered an array of experts in molecular biology and genetics with unimpeachable credentials. All had authored and published countless articles about the PCR technique. They all opined that the PCR technique has gained tire general acceptance of scientists in the particular field in which it belongs.
“The range of expert testimony offered by the State included Dr. Henry A. Erlich, Director of the Human Genetics Department at Cetus Corporation, Dr. Haig H. Kazazian, Director of the Center for Medical Genetics at John Hopkins University, School of Medicine, Dr. Dennis R. Pontani, a research scientist with the New Jersey Department of Health, who specializes in biology, Dr. David H. Bing, Scientific Director of the Center for Blood Research Laboratories, which is affiliated with Harvard Medical School in Boston, and Dr. Henry C. Lee, forensic scientist and Director of the Connecticut State Police Forensic Science Laboratory. The test itself was conducted by Dr. Edward T. Blake, a forensic serologist at the Forensic Science Associates Laboratory in California, who has conducted thousands of forensic examinations and testified as an expert hundreds of times in state and federal courts in over one-half the states, including about 20 to 25 times an expert witness on DNA, PCR and DQ alpha techniques.
“These highly qualified scientists testified to the overwhelming acceptance within the scientific community of PCR-amplified DNA testing. Each was fully familiar with the scientific requisites and proper protocol needed to obtain reliable results and, after reviewing Blake’s protocol, bench notes and result in the instant case, found his experimental design to be excellent and his results highly rehable. Indeed, every caution derived from the experience of molecular biologists and forensic scientists was included in the testing method performed by Blake. All agreed that Blake’s procedure in typing file forensic sample prior to receipt of the reference samples, dividing and saving half of the forensic sample so that the defense could produce its own test results, running more than one test on the forensic sample for comparison purposes, and in simultaneously typing both positive and negative controls, does provide scientifically accurate and rehable results.
“The literature authored and pubhshed by those individuals is imposing. For instance, the number of articles which each witness has either written or played a role in publishing are as follows: Dr. Hemy A. Erlich, over 100; Dr. Haig H. Kazazian, over 200; Dr. Dennis R. Pontani, over 12; Dr. David H. Bing, over 50; Dr. Henry C. Lee, over 150; and Dr. Edward T. Blake, over 75. Many of their recent articles deal with the reliability of PCR testing techniques.
“In addition, it was shown that there are at least two dozen courts that have ruled favorably upon the reliability of PCR tests.
“Against this imposing array of evidence and testimony from the leading molecular biologsts and geneticists in the nation, defendant did not offer a single witness in opposition.
“[I]n the face of such overwhelming and persuasive testimony and evidence, this court concludes that the State has clearly and convincingly proven that the PCR testing has gained general acceptance in the particular field in which it belongs and, accordingly, testimony of this testing technique is admissible.” 252 N.J. Super at 380-83.
In the case before us, Dr. Blake testified that the PCR amplification was reliable and accepted by the scientific community. No evidence was presented disputing Blake’s opinion. We find no error or abuse of discretion in the trial court’s determination that the State had satisfied the Frye test relative to the admission of PCR amplification evidence herein. There is no claim the testing was improperly performed.
Finally, defendant argues admission of the test results was irrelevant and immaterial. This point arises from Dr. Blake’s testimony on cross-examination that it was possible that some of C.B.’s DNA had not been removed from the tested sample, which could alter the results. Such would be due to the very small size of the sample. This goes to the weight to be afforded the witness’ testi mony that defendant was within the 7% of the population that could not be excluded as the donor of the sample.
Additionally, it should be noted that the State’s case against defendant on the C.B. crimes did not stand or fall on the DNA testing. Some of the other evidence included various items of property taken from C.B. were found in defendant’s bathroom. Also, C.B.’s description of her assailant, including bumps on his penis, and clothing were consistent with the defendant.
We find no error or abuse of discretion in the admission of Dr. Blake’s testimony relative to the DNA testing herein.
SUFFICIENCY OF THE EVIDENCE
For his fourth issue, defendant challenges the sufficiency of the evidence supporting his conviction on all charges except those arising from the last incident involving Nancy Fesler.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Halloway, 256 Kan. 449, Syl. ¶ 1, 886 P.2d 831 (1994); State v. Rowell, 256 Kan. 200, Syl. ¶ 4, 883 P.2d 1184 (1994); State v. Hays, 256 Kan. 48, Syl. ¶ 5, 883 P.2d 1093 (1994).
In this issue, defendant does not contend that the State failed to prove that some or all of the crimes did not occur. Rather, defendant contends the evidence was insufficient to prove that he was the perpetrator.
With this in mind, the evidence may be summarized as follows:
S.W.
S.W.’s rapist was black and wore a wool stocking cap and dark clothing. He used a knife. He took S.W.’s purse, with her identification, and some videotapes. The defendant, a black man, had on a wool stocking cap and was carrying a knife when arrested. S.W.’s purse and identification were discovered in his home.
C.B.
C.B. was raped by a black man who bound her with twine and wire tied to slip knots. He used a toy gun and a knife. He wore a nylon stocking cap type head covering and camouflage pants. C.B. felt small bumps in one area on the underside of her assailant’s penis. The assailant put on black heavy leather work gloves. He took C.B.’s wallet, identification, and some videotapes, in addition to other items.
The defendant was arrested wearing camouflage pants, a wool cap, and a nylon-type hair net. He was armed with a knife and had a toy gun. He was carrying lengths of twine tied in slip knots, and some wire, and he was wearing black leather gloves.
A search of the defendant’s home turned up twine, found through K.B.I. analysis to have the exact same characteristics as the twine fibers left on C.B.’s bed and potentially originating from the same source. Wire was also found, as well as C.B.’s wallet, identification, and two of her videotapes. Small growths were observed on the underside of the defendant’s penis. DNA PCR analysis did not exclude the defendant as the donor of sperm found in C.B.’s vagina. The analysis excluded 93% of the male population.
Defendant further contends the semen stains and a Negroid hair found on C.B.’s bedsheet and determined not to be that of the defendant was exculpatory evidence which the jury ignored. This evidence was not exculpatory; it merely was not inculpatory. C.B. stated a black male friend housesat for her when she was gone and slept in her bed prior to the rape. With regard to the semen stain, C.B. stated that prior to the rape this friend had told her he had ejaculated on the bed while housesitting. C.B. also testified she had had oral sex with someone she was dating about a week or two before the rape, and he had ejaculated on her sheets.
Tucker, Fiers, Pelowski
The three young women were burglarized by someone who took items, including Sonja Tucker’s purse and a wooden key fob with her name on it, which was found in defendant’s residence. In addition, entry had been made by removing a glass pane from the back door. The defendant’s fingerprint was on the pane.
We find no merit in defendant’s challenge to the sufficiency of the evidence supporting his convictions as the perpetrator of the offenses involved in this issue. We are convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt.
AGGRAVATED BURGLARY INSTRUCTIONS
For his fifth issue, defendant contends the four aggravated burglary instructions are defective because they do not contain the elements of the underlying felonies. Defendant cites State v. Linn, 251 Kan. 797, 840 P.2d 1133 (1992), and State v. Rush, 255 Kan. 672, 877 P.2d 386 (1994), in support of his position.
In State v. Linn, 251 Kan. 797, defendant was convicted of first-degree felony murder, aggravated battery, and aggravated burglary. On appeal, he contended, inter alia, that the trial court erred in failing to specify the underlying felony intended for a conviction for aggravated burglary. The charge of aggravated burglary alleged that the defendant entered or remained in the home “with intent to commit a felony or theft therein.” 251 Kan. at 799. The State argued its evidence would support theft, aggravated battery, or robbery as the underlying felony for aggravated burglary. The trial court’s instruction incorporated the language of the aggravated burglary statute (K.S.A. 21-3716) and stated that to find the defendant guilty of aggravated burglary, the jury must find that the defendant entered or remained in the residence “with the intent to commit a felony or theft therein.” 251 Kan. at 800. The instruction failed to specify a specific felony the defendant allegedly intended to commit inside the resident’s home or specify the statutory elements of theft or any other felony.
We agreed that reversible error had occurred, reasoning:
“The question raised is whether the trial judge’s failure to state the specific underlying felony and its statutory elements in his instructions to the jury deprived the defendant of a fair trial.
“Under the Constitution of the United States and the Constitution of the State of Kansas, a person accused of a crime is guaranteed the right to a fair trial. In cases tried to a jury, the judge and jury have separate and distinct functions. It is for the judge to determine and decide questions of law presented during the trial and to state the applicable law in the judge’s instructions to the jury. It is for the jury to decide the facts from the evidence submitted and to render a verdict in accordance with the judge’s instructions.
“An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff’d as modified 246 Kan. 393, 789 P.2d 1175 (1990).
“An instruction as to tire offense of aggravated burglary is defective unless it specifies and sets out the statutory elements of the offense intended by an accused in making the unauthorized entry.
“Under the circumstances here, the trial judge’s failure to state the specific underlying felony or felonies and their elements prevented the jury from rendering a lawful verdict and was an error of constitutional magnitude depriving the defendant of a fair trial. Under tire circumstances, Linn’s conviction for felony murder and aggravated burglary must be set aside and the defendant granted a new trial.” 251 Kan. at 802.
In State v. Rush, 255 Kan. 672, defendant contended the trial court instructed as one of the elements of burglary that the defendant knowingly entered the building “with intent to commit a theft therein” but failed to instruct on the elements of the crime of theft. The Court of Appeals affirmed this issue. On petition for review to this court, we reversed, reasoning:
“The Court of Appeals in its decision here attempted to distinguish our decision in State v. Linn, 251 Kan. 797, 840 P.2d 1133 (1992), on the basis that Linn presented evidence of several underlying felonies (theft, aggravated battery, or robbery), but here we have only one underlying felony, that being felony theft. Linn’s holding was clear: ‘An instruction as to the offense of aggravated burglary is defective unless its specifies and sets out the statutory elements of the offense intended by the accused in making the unauthorized entry.’ 251 Kan. at 802. We find the distinction by the Court of Appeals is not supported based on the very specific holding in Linn. We hold, therefore, that the trial court committed reversible error in instructing the jury as to die offense of burglary because it did not ‘set out the statutory elements of the offense intended by die accused’ in its burglaiy instruction.” 255 Kan. at 679.
In State v. Watson, 256 Kan. 396, 885 P.2d 1226 (1994), we reaffirmed the Linn rule. In Watson, defendant was convicted of attempted aggravated burglary. The Court of Appeals affirmed the conviction in an unpublished decision. On petition for review, defendant contended that the trial court’s instruction on attempted aggravated burglary was incorrect because at no place in the instructions were the elements of theft included. We agreed that the trial court’s failure to set out the statutory elements of theft was erroneous, but found the error to be harmless because we had a firm belief beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. 256 Kan. at 404.
The Linn, Rush, and Watson cases are distinguishable.
In the four aggravated burglary charges herein, the requisite intent was stated to be that defendant entered the residences with intent to commit the following crime or crimes:
1. S.W. — rape, aggravated robbery, or theft;
2. Sonja Tucker — theft;
3. C.B. — rape, aggravated robbery, or theft;
4. Nancy Fesler — theft.
In its instructions, the trial court instructed on, in addition to the four aggravated burglaries, the following crimes:
1. S.W. — rape, aggravated robbery, and theft (as a lesser included offense);
2. Sonja Tucker — theft;
3. C.B. — rape, aggravated robbery, and theft (as a lesser included offense);
4. Nancy Fesler — theft.
Thus, the jury was not in the dark as to what felony the State had to prove defendant intended to commit in each residence or what the elements were for each such felony. The jury was fully instructed in this regard. Including the elements of each such felony in the aggravated burglary instruction would, under the circumstances herein, have been duplicitous and confusing. We find no error in this issue.
SENTENCING
For his final issue, defendant contends that sentences imposed herein constitute an abuse of judicial discretion as the trial court gave a lengthy sentence with only brief references to the sentencing considerations and guidelines contained in K.S.A. 21-4601 and K.S.A. 21-4606.
Defendant was convicted of 11 felonies and 2 misdemeanors herein. These included: 1 class A felony, 5 class B felonies, 4 class C felonies, and 1 class E felony. The Habitual Criminal Act, K.S.A. 1992 Supp. 21-4504, was invoked. In the aggregate, defendant received a term of life plus 171 years to life.
K.S.A. 21-4601 provides the fundamental framework for the sentencing of criminals:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
K.S.A. 21-4606 lists factors for consideration by a sentencing court:
“(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.
“(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
(a) The defendant’s history of prior criminal activity;
(b) The extent of the harm caused by the defendant’s criminal conduct;
(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
(d) The degree of the defendant’s provocation;
(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
In State v. Richard, 252 Kan. 872, 880-81, 850 P.2d 844 (1993), we set forth the general parameters of sentencing:
“It is the sentencing judge alone who uses his or her discretion to determine the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, the public safety, and the statutory guidelines for sentencing. State v. McDonald, 250 Kan. 73, 82, 824 P.2d 941 (1992).
“The statutory factors which the judge shall take into consideration in determining the penalty to be imposed are enumerated in K.S.A. 21-4606. Where the sentence exceeds the minimum, the legislature intended that the sentencing judge place on the record a detailed statement of facts and factors the judge considered. Failure to do so does not always indicate the sentencing court abused its discretion. Each ease is to be considered on its facts. See State v. McDonald, 250 Kan. at 82-83.
“Although the appellate courts have upheld sentences where the factors considered by the sentencing judge are not specifically enumerated, tire appellate courts have repeatedly stated the better practice is for a trial judge to make a detailed record of the facts and factors considered in imposing sentence. See, e.g., State v. Crispin, 234 Kan. 104, 113, 671 P.2d 502 (1983). A sentencing court may be found to have substantially complied with K.S.A. 21-4606 when it incorporates into the record a presentence report which addresses the seven factors which must be considered pursuant to K.S.A. 21-4606(2). State v. Webb, 242 Kan. 519, Syl. ¶ 2[, 748 P.2d 875 (1988)].”
See State v. Dotson, 256 Kan. 406, 415, 886 P.2d 356 (1994).
K.S.A. 21-4601 sets forth the Kansas policy in sentencing a defendant. The trial court must observe this policy during sentencing. Failure to mention K.S.A. 21-4601 and the policy contained therein on the record is not error as long as, from the entire record, it becomes clear that the trial court considered the provisions of K.S.A. 21-4601. State v. Johnson, 255 Kan. 156, Syl. ¶ 5, 872 P.2d 247 (1994).
In sentencing the defendant herein, the trial court stated, in part:
“[A]ddressing the sentencing factors, first of all the defendant’s history of prior criminal activity. In this case, the defendant does have a prior record; it’s a significant one. The record shows that Mr. Hill has the previous conviction for aggravated robbery in Wichita in 1988, that would be a person felony offense; and he also has the conviction for attempted aggravated robbery, also in Wichita in 1988, that also is a person felony offense. Only those two convictions, but, of course, they are very serious matters, and they involve previous crimes against the person. The Court finds that the defendant caused extensive, massive harm by his criminal conduct in this case, and that the defendant intended that his criminal conduct would cause or threaten that harm. The amount of harm caused to the victims in this case you really can’t even elaborate on. I mean, we’re talking about charges of rape, aggravated robbery, aggravated kidnapping. I’m sure the events surrounding this case will stay with the victims for as long as they live. The Court finds that, of course, the defendant was not provoked to commit these crimes in any way, and that there are no substantial grounds tending to excuse or justify the defendant’s criminal conduct. The Court finds, of course, that the victims did not induce or facilitate these crimes in any manner. And the Court also finds that the defendant has not been able to financially compensate or reimburse the victims for any of these crimes, and there’s very little likelihood that he’ll ever be able to do so. The Court notes that there's no codefendant in this case, so there’s no one else really for the Court to compare sentencing with. The Court notes that, of course, because of the very serious nature of the charges, there are no statutory presumptions for either probation or Community Corrections. ... I think the thing that bothers me most about this case is that the defendant committed these acts within such a short time after being released from [prison] on his prior offenses. To me, that indicates that it was a mistake to release Mr. Hill on parole, and that he should never be released again.
“Having regard to the nature and circumstances of the crime, and the history, character and condition of the defendant, the lowest minimum term which, in the opinion of the Court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime is as follows. . . .”
The sentences imposed are lengthy. The crimes for which defendant was being sentenced were numerous and very serious. Contrary to defendant’s assertion, it is clear that the sentencing court considered K.S.A. 21-4601 and -4606. The court was appropriately concerned over the seriousness of the many crimes herein and their commission so shortly after defendant had been released from prison on parole. The sentences are within the statutory limits. 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. Dotson, 256 Kan. at 416; State v. Arrington, 251 Kan. 747, Syl. ¶ 6, 840 P.2d 477 (1992); State v. Heywood, 245 Kan. 615, 617-18, 783 P.2d 890 (1989).
We find no abuse of judicial discretion in the sentences imposed herein.
The judgment is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
Diana Lumbrera appeals her jury trial conviction of first-degree murder (K.S.A. 1989 Supp. 21-3401). Defendant had been previously convicted of the same offense, but that conviction was reversed by this court on the basis of cumulative trial errors having deprived defendant of a fair trial (State v. Lumbrera, 252 Kan. 54, 845 P.2d 609 [1992]).
The victim herein was defendant’s four-year-old son, Jose. It was the State’s theory that defendant had intentionally smothered the child in order to benefit from his life insurance policy. The child died in Garden City. Additional facts will be stated as necessary for the discussion of particular issues.
EXPERT REBUTTAL TESTIMONY
For her first issue, defendant contends the district court erred in allowing the State to present certain expert rebuttal testimony. Much of the testimony in this case came from expert witnesses on each side relative to the cause of Jose’s death. The State was seeking to prove murder by means of suffocation. The defense sought to establish that death from natural causes was, at least, a possibility. To place the specific issue raised in context, some additional facts need to be set forth.
On the afternoon of April 30, 1990, defendant picked Jose up early from his babysitter’s home after being notified he was vomiting. Defendant took the child to St. Catherine’s Hospital where he was seen by Dr. Albert H. Gaines, the emergency room physician. A bacterial infection was the diagnosis, and Amoxicillin was prescribed. The physician did not believe Jose had a life-threatening condition, and he was sent home with defendant.
A little over 24 hours later (9:48 p.m.), defendant carried the body of Jose into the same emergency room. After unsuccessful “code blue” efforts, Jose was pronounced dead at 10:25 p.m. by Dr. Michael Shull, a pediatrician.
Also present was Dr. Lauren Welch, a surgeon. Dr. Welch testified that he observed three physical manifestations that made him suspicious that Jose’s death was not from natural causes. First, Jose had petechiae across his face and on his eyelids. Petechiae are pinpoint hemorrhages in the skin that appear as small red or reddish-purple spots. Petechia in this particular distribution signifies an asphyxial cause of death. Asphyxia occurs when a person does not breathe in enough oxygen. Second, there was no obstruction when a tube was placed down Jose’s trachea, and his lungs were clear. Third, when a nasal gastric tube was inserted, it revealed that Jose had food in his stomach, indicating Jose had not vomited for some time. Observations two and three seemed to eliminate any obstruction within the boy’s body shutting off his air supply, which left asphyxiation by smothering or suffocation.
Dr. Eva Vachal was the pathologist performing the autopsy. Her observations and conclusions were consistent with those of Dr. Welch, leaving smothering as the cause of the asphyxiation. Dr. Luther Frye, an ophthalmologist called in by Dr. Vachal, concluded from his examination of the petechiae present in Jose’s eyes that death could not have been the result of natural causes. The State also presented testimony from Dr. Michael Baden, a forensic pathologist, who testified as to his conclusion that Jose had been smothered.
The defense called its own experts relative to the cause of Jose’s death. Dr. William Eckert conducted a second autopsy on Jose’s body. He testified: (1) Jose had a chronic inflammatory infection in various organs; (2) the petechiae in the boy’s eyes was due to dryness; (3) there was no evidence of smothering; and (4) death must have occurred from natural causes.
Dr. Charles Reiner, a pediatric pathologist from Columbus, Ohio, based his testimony on the autopsy reports of Drs. Vachal and Eckert as well as the examination of some tissue slides. Dr. Reiner testified Jose had a widespread viral infection which, by itself, was insufficient to cause death. Dr. Reiner opined, however, that such an infection could inflame the atrioventricular (AV) node of the heart which, in turn, could produce sudden death from ventricular fibrillation. No slides of the AV node had been made at either autopsy. Dr. Reiner testified on April 20, 1993, was excused, and went back to Ohio.
The State notified Dr. Vachal of Dr. Reiner’s testimony. Dr. Vachal had the AV node available, made slides thereof, and did further testing. On April 22, the State advised that it wished to call Dr. Vachal as a rebuttal witness relative to Dr. Reiner’s AV node testimony. The defense made the following objection:
‘Tour Honor, we would object to the addition of any new slides or interpretations along the reason that we have never had an opportunity to view these particular slides, much less have our own pathologist or our own expert witnesses review them. We cannot identify or even properly cross-examine Dr. Vachal on the preparation techniques used or the evaluation she would be drawing without the assistance of an expert. And had we received this last week we would have had three experts we could have drawn on to get that advice, but here it is the last hours of the case and I don’t have a chance in tire world to know what we’re talking about, much less evaluate it by way of asking an expert is this in fact what I’m looking at.”
The court, after noting that the defense’s objection went not to the nature of the evidence but rather to the lack of opportunity to prepare therefor, offered defense counsel a brief recess to discuss Dr. Vachal’s testimony prior to her taking the witness stand. Defense counsel then requested a specific finding as to the claim of “surprise.” The court replied:
“I have to conclude that under the circumstances as they arose in this case the rebuttal evidence does not constitute unfair surprise or take unfair advantage of defense counsel. All of the evidence before me indicates that Dr. Vachal and the prosecution were not aware of die need to examine this portion of the heart until that need was raised by the testimony of defense pathologists. And so it is truly rebuttal evidence and not evidence which they were prepared to present in their case in chief.”
Defense counsel then requested and received time to meet with Dr. Vachal. A trial recess was taken for this purpose. When Dr. Vachal took the stand, she testified that upon being advised by the State on April 20 of the defense testimony relative to the AV node, she and her associate performed additional studies. They dissected the heart, including the AV node, and found no irregularities. She then adhered to her original death by smothering conclusion.
For her first issue, defendant contends that the admission of the rebuttal evidence violated several rights essential to obtaining a fair trial, including “her right to be free from undue surprise in the State’s case, her Sixth Amendment right to confront the witnesses against her, and her Fourteenth Amendment due process right to expert testimony.”
Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or acts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court, and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice. State v. Martin, 237 Kan. 285, Syl. ¶ 5, 699 P.2d 486 (1985). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds. State v. Cahill, 252 Kan. 309, Syl. ¶ 6, 845 P.2d 624 (1993).
We now turn to the various contentions made by the defendant. We shall first consider the claim of unfair surprise.
K.S.A. 60-445 provides:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
Was the refusal of the trial court to exercise the authority granted to it by the statute a breach of judicial discretion? We believe not.
The State had no way of anticipating that the condition of Jose’s AV node would be an issue until defense expert Dr. Reiner testified on April 20 that an irregularity therein might have caused the boy’s death. A microscopic examination of the conducting system of the heart, including the sinoauricular (SA) node and the AV node, is not a routine part of an autopsy and was not performed by Dr. Vachal during Jose’s autopsy because there were no clinical indications that Jose might have a problem with his conducting system. Such an examination is, according to Dr. Vachal, a very complicated and time-consuming procedure.
When defense counsel objected to the introduction of Dr. Vachal’s rebuttal testimony on April 22, he stated that if he had the evidence “last week” he could have had the defense’s medical experts evaluate it, but that at this late date they were no longer available. He contends the defense was unduly surprised by the offered rebuttal testimony. We do not agree. The only surprise herein was the defense’s introduction of a new possible cause of death in its case in chief. It should hardly have come as a surprise to defense counsel that the State would use its rebuttal for damage control of this new alternative theory of the cause of Jose’s death. Bringing on an expert to refute the AV node as the culprit would be the most logical way to accomplish this. Further, Dr. Reiner knew that Dr. Vachal had Jose’s heart. Dr. Reiner made no request to study Jose’s AV node. The defense should have anticipated that further studies would be done by the State following Dr. Reiner’s testimony. Further, the trial court afforded defense counsel the opportunity to confer with Dr. Vachal prior to her rebuttal testimony.
Defendant’s reliance on State v. Wacker, 253 Kan. 664, 861 P.2d 1272 (1993), is misplaced. At issue in Wacker was a psychological report on defendant which was not made available to defendant until trial had commenced. We held:
“In a criminal case, evidence not disclosed to the defendant before trial is not suppressed or withheld by tire State if the defendant has personal knowledge thereof or if the facts become available to him during trial and he is not prejudiced in defending against them.“ 253 Kan. 664, Syl. ¶ 5.
The case herein does not involve evidence withheld from the defendant.
Next, defendant argues the admission of the rebuttal testimony violated her Sixth Amendment right of confrontation of witnesses as she no longer had a medical expert of her own with which to confront the State’s expert rebuttal witness. Defendant claims that in some unspecified manner her constitutional right to due process was violated by admission of the rebuttal testimony.
It should be noted defense counsel did not request the opportunity to contact any of its experts prior to undertaking the cross-examination of Dr. Vachal on rebuttal.
We have carefully reviewed this issue in each of its claimed particulars and find no merit therein, either individually or collectively.
OTHER CRIMES EVIDENCE
For her second issue, defendant contends the trial court abused its discretion in allowing the State to introduce evidence under K.S.A. 60-455 of defendant’s two prior murder convictions.
After Jose died in Garden City under what were deemed to be highly suspicious circumstances, defendant’s prior history was investigated. It was learned she had previously resided in Texas where five other young children of defendant’s had inexplicably died at tender ages while under defendant’s care. These deaths were each in separate incidents extending over a several-year time span. Defendant was originally tried and convicted in Kansas in the fall of 1990. This conviction was reversed on December 11, 1992. Her retrial occurred in April of 1993. Because of the Kansas prosecution for Jose’s murder, Texas authorities opened an investigation into the five Texas deaths plus the death of another young child. Between the times of the first and second Kansas trials, defendant pled nolo contendere to the first-degree murder of two of the children who died in Texas. The State moved to admit, under K.S.A. 60-455, evidence of the two convictions to show motive, intent, and preparation.
K.S.A. 60-455 provides that evidence that a person committed a crime or civil wrong is inadmissible to prove his or her disposition to commit crime, but that such evidence is admissible when relevant to prove some other material fact, including mo- five, intent, and preparation. In ruling upon the admissibility of evidence of a prior crime or civil wrong under K.S.A. 60-455, the trial court must: (1) determine it is relevant to prove one of the facts specified in the statute; (2) determine the fact is a disputed, material fact; and (3) balance the probative value of the prior crime or civil wrong evidence against its tendency to prejudice the jury. State v. Jordan, 250 Kan. 180, Syl. ¶ 7, 825 P.2d 157 (1992).
At the conclusion of the hearing on the State’s 60-455 motion, the trial court found:
"There probably is no evidentiary ruling that a trial court makes that is more difficult than the evidentiary rules that arise under 60-455. I haven’t checked, but there may not be a statute that has more citations under it than 60-455. The last that I looked some 228 Supreme Court cases ruling on whether the evidence was properly admitted under 60-455. I’m sure the similarity of these acts is beyond question. The relationship of the victim and the assailant is the same in each case, mother and child. The alleged cause of death in each case is the same, suffocation. In each case the child was covered by insurance and each case the beneficiary was the defendant. In each case the age of the child is of tender years. In each case the defendant was present at the time the death allegedly occurred. In each case the child had been to see or some type of medical treatment had been brought to bear immediately prior to the death. In each case the result was die same, the child died. In each case the funeral expenses were less than the insurance. And in each case the parent secured a pecuniary profit.”
The trial court held that the two prior convictions were relevant on the issues of motive, intent, and preparation. The trial court then balanced the probative value of the evidence of prior crimes against its tendency to prejudice the jury and concluded it was admissible under K.S.A. 60-455.
We find no abuse of discretion therein. The factual milieu of this case is so unique and bizarre that it is difficult to compare with other cases where admissibility of other crimes evidence under K.S.A. 60-455 has been an issue. The primary disputed fact in this case was whether Jose was smothered or died of natural causes. If death was by smothering, the evidence was that defendant was the only individual with the opportunity to commit the act.
The defendant took her child into the emergency room for treatment the day before he died, on its face the act of a concerned parent. The next day, defendant took the child to the hospital after he stopped breathing. Again, this apparently was the act of a concerned parent. There are no witnesses who saw what happened to Jose the night he died. The medical evidence from the emergency room and the autopsy supported death by smothering. The concept that a mother would intentionally kill her own young child is so repugnant that such a theory places a heavy burden on the State. Nevertheless, the evidence was that defendant had been previously convicted of two chillingly similar crimes. Shortly before each child’s death, medical attention had been sought for the child by the defendant, thereby, according to the State, preparing an official record of health problems which would make the subsequent unexplained death less suspicious. Further, defendant had obtained life insurance on each of the children and financially benefitted from their deaths.
Under the facts herein, we find no error or abuse of discretion in the admission of evidence of prior crimes to show motive, intent, and preparation.
THREE-DEATH RULE
For her third issue, defendant contends the trial court erred in permitting two of the State’s expert witnesses to testify relative to the “three-death rule.”
Some additional facts are necessary to the discussion of this issue. The two Texas convictions were for the murders of Jose Lionel Garza, who died February 13, 1978, and Melinda Garza, who died August 17, 1982. Melinda was two years and nine months old when she died. The cause of death listed on her death certificate was acute interstitial broncho-pneumonitis viral and acute heart failure. Jose Lionel was about two and one-half months old . at the time of death. Multiple natural causes of death were listed on his death certificate.
After Texas law enforcement officers began investigating the deaths of defendant’s children in Texas following the death of Jose in Kansas, medical experts were brought in to study the re cords. Prosecution in Texas was commenced, and defendant pled no contest to the murders of Jose Lionel and Melinda. Evidence of the convictions was admitted in defendant’s trial herein as discussed in the preceding issue. The State also brought in two pathologists to testify relative to the causes of death in Texas of Jose Lionel and Melinda. It should be borne in mind that these two witnesses were testifying only as to part of the facts underlying the Texas convictions — that is, cause of death of the children, not as to the defendant being the perpetrator of the crime of their murders.
The court permitted defense counsel to voir dire Dr. Robert Bux, a Texas forensic pathologist. After determining that Dr. Bux had based his opinions regarding the deaths of Melinda and Jose Lionel Garza on autopsy reports and autopsy slides, the following dialogue occurred:
“Q. [By defense counsel] Now, in the running commentary that you received from Mr. Bonham, Investigator Bonham [investigating officer in the death of Melinda Garza], am I correct that it gives you a report of the six deaths, six children that belonged to Diana Lumbrera as well as the niece of Diana Lumbrera that died in her care?
“A. Yes sir.
“Q. Now in particular when we talk about the multiple number of deaths, as I’m understanding, and please tell me if I’m wrong, that has played a part in the evaluation overall of all of the deaths that you’ve looked at?
“A. Certainly you have to take that into account when there are a series of deaths to explain each one and all of them.
“Q. And in fact, you have been able to come up with your evaluation that all of these children, all seven children that you looked at were murders based upon the evidence we’ve talked about, which would generally include this information from Inspector Bonham and the respective medical information that you’ve received?
“A. I don’t have enough to comment on the case in Kansas to have an opinion. I’ve never seen anything that would allow me to make a judgment on that. I have seen the cases in Texas and I feel qualified to render an opinion in those.
“Q. And in those particular, in those particular cases, you’ve been able to come up with a conclusion and that conclusion being smothering or death by unnatural cause?
“A. Yes, sir. I believe they’re asphyxia! deaths of one type or another.
“Q. In reaching that conclusion I’ve heard the rule cited that one death is probably natural, if it’s unexplained, SIDS, but if there’s two deaths or more presumption is that it is unnatural; is that a thumb rule that you adhere to?
“A. Only when I do not have an adequate explanation to explain why a person, particularly a baby or a young child died. The second one if I was unable to come up with any kind of, of diagnosis specific, the first one I would, and if it was under a year and they were under a year old or better yet, under ten months, I’d probably call the first one a SIDS, the second one I would call undetermined and file third empirically I’d call a homicide.
“Q. That would be based upon two issues, one that there were at least three deaths; and secondly, in your opinion, they would be inadequately explained or explanation unknown for the death?
“A. That’s correct. Provided you’ve done a full criminal investigation, provided you have done a complete autopsy, including microscopic examination, and provided you have done exhaustive toxicologic studies. If you have done those tilings, then the answer is yes, sir.”
Dr. Bux subsequently testified that both Melinda and Jose Lionel Garza died as the result of asphyxia.
In the voir dire of Dr. Harry Wilson, a Colorado pediatric pathologist, a similar exchange between defense counsel and witness occurred as follows:
“Q. [By defense counsel] Now in reaching your diagnosis as to Jose and Melinda, am I correct that you will be utilizing the rule of thumb that basically says there are a sequence of deaths or series of deaths that will cause you to conclude there must be an unnatural cause of death?
“A. Sir, with regard to Melinda Garza as a case unto itself my conclusion in that case would be that this is an unexpected and unexplained death. And the same would be said by me with regard to the death of Jose Lionel Garza that this is an unexpected and unexplained death. As reviewing that death as a case unto itself. With regard to the death of Jose Lumbrera, this death is unexpected but is explained by the autopsy findings.
“Q. And that explanation being that the child died of what cause?
“A. Died from asphyxiation probably due to suffocation.
“Q. Now, on the initial deaths of Jose and Melinda then you are not in a position to render an analysis of whether or not that was a homicide or smothering death?
“A. As, as individual cases just dealing with the case and the issues and facts, medical facts for that case, the answer is you cannot take that case and, in my mind, argue that it’s a homicide. What you have to say is you don’t understand why the person died.
“Q. You have, however, written a report to the county attorney’s office indicating that in your opinion all seven deaths, which included Ericka Aleman were homicides?
“A. That’s correct, sir. And that’s based on a pattern and based on the fact that die last death is of itself a homicide, and using that pattern when you have a series of unexplained deaths, unless there is some underlying medical condition that would have caused all those kids to die, that because of the pattern those are also homicides. But there the argument is based on pattern, not based on each case by itself.
“Q. Doctor, what would be needed to establish the pattern, how many deaths, would two be sufficient?
“A. Well, in this case the final death stands alone in establishing a murder. So that what you do then is you look back at prior deaths and you say were these deaths unexpected and unexplained. And it makes you highly suspicious. If you had just one other death you would be highly suspicious of that other death, but you might not be able to conclude that that was a murder. But with either six other deaths or two other deaths you would be quite highly suspicious that they were murders. I mean no one knows what happened except the people that were with that person when that person died. I mean no one really knows what happened. You just try to infer the best you can. And when it’s an unwitnessed event by anyone else you have to look for patterns.
“Q. And you’re looking basically at statistical probability as opposed to a medical evaluation case by case?
“A. That’s right. But with a medical evaluation that does not allow you to explain why that child who was alive is now dead. And the other factor that’s in here besides unexpected and unexplained is in the presence of the same single caretaker. And in that circumstance then you have to presume that that same single caretaker did something to bring about the death.”
Defense counsel argued that the testimonies of Drs. Bux and Wilson should be excluded on the basis that each medical expert’s finding did not take into account all the necessary facts, that their conclusions were unreliable, and that the experts were each acting as “a trier of ultimate fact.” The court overruled the defense effort to exclude the medical experts from testifying, reasoning:
“First, Mr. Quint [defense counsel] refers to the presumption of innocence that Mrs. Lumbrera enjoys as a benefit conferred upon her by our constitution. And he places, so to speak, in the scales of justice to weigh against them the presumption that Dr. Bux has testified to here this morning about a series of deaths, tending to explain why the deaths occurred. And he says that the doctor’s scientific presumption cancels out Mrs. Lumbrera’s constitutional presumption of innocence and that therefore on a constitutional basis the doctor’s testimony is inadmissible. The fallacy in this argument is this, Mr. Quint matches the words presumption, but it is what is presumed that determines whether or not the evidence is admissible. Mrs. Lumbrera is entitled to a continuing presumption of . . . innocence until the State proves that she is guilty. Dr. Bux’s presumption has nothing to do directly with whether she is innocent or guilty. His presumption goes to the cause of death of a child, and it is for the jury to determine whether or not the cause of death relates directly to Mrs. Lumbrera. Therefore, his presumption and the constitutional presumption are of a different nature.”
The trial court then raised a concern it had with the expert’s testimony as follows:
“Thirdly, defense is entitled to cross-examine the witness on the basis of his opinion. And the rules regarding the degree of cross-examination are to be liberally construed in favor of cross-examination, in favor of the defense. So the real difficulty with Dr. Bux’s testimony here today is not that the basis of his opinion is accurate, because he has testified that the basis of Iris opinion with regard to Melinda’s death and Jose Lionel’s death is the autopsy report, the slides in Lionel’s case, die blocks and the synopsis prepared by Officer Bonham. I might have some reservations about the accuracy of Officer Bonham’s synopsis that was obviously prepared some years later, but the clinical basis, the autopsy reports and the slides do provide a reasonably accurate basis for his opinion. I’m concerned, however, that incorporated into his opinion are the deaths of other children, and I have previously ruled that the prosecution is prohibited from bringing evidence regarding those deaths to the jury.”
The court then made inquiry of Dr. Bux as follows:
“If you are capable of testifying in this trial and intellectually and honestly basing your opinion upon the information that you received regarding the deaths of Melinda and Lionel then I conclude that your evidence is admissible in this trial. If you cannot base your opinion on their deaths alone and must incorporate in the basis of your opinion the deaths of the other children, then that places Mr. Quint in a position of having to examine you on their deaths in order to fully explore the basis of your opinion. And what that does is it, to use a nonlegal term, it in effect allows the county attorney to bootleg in the evidence of the other deaths which I have already ruled as inadmissible. I can’t in good conscience say that I’m going to let you testify and give an opinion based on the deaths of the other children and then simply tell Mr. Quint well, if you want to talk about those other children in front of the jury that’s the risk you take. Because if we start out knowing that’s the basis of your opinion then that is in effect giving the county attorney an unfair advantage because he is using the deaths of those other children for evidentiary purposes which Mr. Quint is unable to explore. I previously have asked you if you are able to render an opinion based on the deaths of Melinda and Lionel and not on the deaths of the other children and you answered at that time yes. But now understanding the gravity of my question, is it still your opinion that you can testify here today and use as the basis of your opinion Melinda’s death and Lionel’s death and exclude intellectually from your reasoning and your conclusion the deaths of the other children?
“DR. BUX: Yes, sir.
“THE COURT: Okay. I accept that and I overrule your objection. And Dr. Bux will be allowed to testify. And you, of course, will be given broad latitude in cross-examining him.”
The court overruled the defense objection to Dr. Wilson in similar fashion.
Admission of expert testimony is governed by K.S.A. 60-456(b) and (d):
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of die fact.”
The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case. To be admissible, expert testimony must be helpful to the jury. Where the normal experience and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible. State v. Hodges, 239 Kan. 63, 67, 716 P.2d 563 (1986). An expert’s opinion, pursuant to K.S.A. 60-456, is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. State v. Lash, 237 Kan. 384, Syl. ¶ 1, 699 P.2d 49 (1985). Although an expert may give an opinion on an ultimate issue as provided in K.S.A. 60-456(d), such witness may do so only insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. An expert witness may not pass on the weight or credibility of evi dence, for those matters are strictly within the- province of the jury. State v. Graham, 246 Kan. 78, Syl. ¶ 2, 785 P.2d 983 (1990).
The admissibility of expert testimony lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion. State v. Searles, 246 Kan. 567, Syl. ¶ 8, 793 P.2d 724 (1990); State v. Colwell, 246 Kan. 382, Syl. ¶ 7, 790 P.2d 430 (1990); State v. Stukey, 242 Kan. 204, Syl. ¶ 1, 747 P.2d 137 (1987).
We find no abuse of discretion in the trial court’s ruling relative to the admissibility of the expert testimony of Drs. Bux and Wilson.
The State stayed within the parameters of the trial court’s ruling relative to Dr. Bux. The defense’s cross-examination exceeded these parameters. Defense counsel asked Dr. Bux specifically about the deaths of two other children of defendant, Joanna and Christopher. Aware of the trial court’s limiting ruling, the witness asked the court, in each instance, if he should answer. On redirect, Dr. Bux stated he made his diagnoses as to Jose Lionel and Melinda based on the facts relative to only those children.
Testimony relative to the deaths of Joanna and Christopher was intentionally brought in by defense counsel. This inquiry was clearly beyond the court’s ruling, but counsel for the defendant ventured into those forbidden waters and also made sure the jury was aware of the three-death rule and its role in the expert opinion herein as to the deaths of Melinda and Jose Lionel. This deliberate course of action cannot be the basis of a claim of trial court error. See State v. Bruce, 255 Kan. 388, Syl. ¶ 6, 874 P.2d 1165 (1994); State v. Phillips, 252 Kan. 937, Syl. ¶ 6, 850 P.2d 877 (1993); State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989).
We also note that the deaths of these other children of defendant’s were a focal point of the closing argument of defense counsel wherein defendant’s loss of her children was characterized as a Biblical tragedy and likened it to Job’s loss of seven sons and three daughters. Also, defense counsel challenged the three-death rule as being wholly unscientific. He argued it was the only basis for Drs. Bux and Wilson’s testimony as to the causes of death of Jose Lionel and Melinda which should, accordingly, be afforded no weight.
We find no reversible error or abuse of discretion in this issue.
ADMISSION OF STATEMENT
For her fourth issue, defendant contends the trial court erred in admitting a statement she made to police officers. A Jackson v. Denno hearing was held. The following facts were shown. Officers first interviewed defendant at her home on May 3, 1990. The interview lasted about an hour, was informal, and no Miranda warning was given. On May 5, 1990, defendant was requested to come to police headquarters for a further interview. This interview was tape-recorded and lasted from about 12 noon to 3:30 p.m. Near the end of the interview the officers decided to become more “aggressive” and read the Miranda warning to defendant. She requested the opportunity to speak with her attorney and was afforded that right, but was unable to reach him. She was permitted to go home. Clearly, the interview ceased upon the request to confer with her attorney. After defendant returned home, the decision was made by the county attorney to arrest her. Defendant was arrested and taken to jail. At about 6:00 p.m. that same day (May 5) one of the interviewing and arresting officers (Elliott) received a call from a jailer that one of the inmates wanted to speak with him. The inmate was the defendant. She was taken to an interview room, again given the Miranda warning, and then she executed a waiver of right form. The third interview was conducted by Detectives Elliott and Utz. Although defense counsel does not specifically so state, it appears that the complaint is to this third interview as that is where the incriminating statements were made. During this interview, Detective Utz advised defendant that the evidence showed Jose had been smothered and, essentially, as defendant was the only person with him, she must have done it. The detective indicated defendant nodded her head in agreement.
Detective Utz then told defendant that he wanted to find out why she would have done this because he “wanted to believe it was nothing more than an accident.” Detective Utz asked de fendant if “she just did not know what she was doing when she suffocated Jose with a pillow.” Defendant responded that “it wasn’t with a pillow.”
Detective Utz asked defendant if she had ever experienced blackout spells where she could not remember what she was doing. Defendant recalled experiencing one at work a few months earlier. Utz suggested that perhaps defendant could have experienced a blackout spell and awakened from it to find herself standing over Jose, finding Jose not breathing, and not realizing what she had done. Defendant responded that she did not do anything intentionally. Detective Utz again suggested the possibility that defendant had .blacked out and suffocated Jose without realizing it. Defendant then responded that this was “probably what happened.”
At the conclusion of the Jackson v. Denno hearing, the trial court held:
“I think that Mr. Quint is correct when he observes tiiat all three of the interviews occurred during the period of time in which the defendant Diana Lumbrera was experiencing emotional and probably physical stress as a result of the death of her son, the funeral and those activities related to that. However, there is not sufficient evidence to indicate that this emotional and physical stress impaired her faculties to the extent that she did not understand the rights that were read to her when they were read to her. There is no substantial evidence here that she did not know what she was saying or what she was doing. The court finds that during the non-custodial interrogations that took place, that diere is no evidence of coercion. There is no evidence of threats. There is no evidence of promises. And that the statements that she gave were freely and voluntarily given, and whenever she sought the assistance of counsel she was given the opportunity to contact counsel and whenever she asked diat the interview be terminated it was terminated. With regard to the custodial interrogation tiiat occurred last, the evidence is tiiat she was advised of her rights, that she understood her rights, that she freely, voluntarily and knowingly waived those rights and that she consented to the interview. Furthermore, there is not any substantial evidence, in a way there’s no evidence at all, that the medication she was taking interfered with her faculties or deprived her of the ability to know and understand what was going on. This was a period of great stress, but that stress alone is not sufficient reason under the law to exclude statements that she gave. The motion to suppress is denied.”
The prosecution has the burden of proving whether a confession or admission is admissible. K.S.A. 22-3215(4). When deter mining the voluntariness of a statement, the court must view the totality of the circumstances, including (1) the manner and duration of the questioning; (2) the suspect’s ability upon request to communicate with the outside world; (3) the suspect’s intellect, age, and background; and (4) the fairness of the interrogating officers. State v. Graham, 247 Kan. 388, 395, 799 P.2d 1003 (1990); State v. White, 246 Kan. 28, 32, 785 P.2d 950 (1990); State v. Waugh, 238 Kan. 537, 541, 712 P.2d 1243 (1986).
On appeal, an appellate court will not reverse a determination that a confession was freely, voluntarily, and intelligently given if there is substantial competent evidence to support the determination. State v. Fritschen, 247 Kan. 592, Syl. ¶ 3, 802 P.2d 558 (1990); State v. Alexander, 240 Kan. 273, 282, 729 P.2d 1126 (1986); State v. Waugh, 238 Kan. at 541.
Defendant had a 10th grade education, and was 31 years of age at the time of the interview. She was employed and conversant in English. There is no indication of disorientation, coercion, or mental or physical disability. She had some prescribed sleeping and anti-stress medication but advised the officers at the time of the interview she had not taken any for a couple of days.
We find there is substantial competent evidence to support the trial court’s determination that the defendant’s incriminating statements were freely, voluntarily, and intelligently given.
INSTRUCTIONS
For her final issue, defendant contends the trial court erred in refusing to give instructions on reasonable doubt and expert testimony which defendant had requested.
The defendant wanted the reasonable doubt instruction set forth in the federal criminal instructions § 11.14. The trial court had no problem with the proposed instruction as a valid statement of the law, but preferred to follow the recommendation of PIK Crim. 3d. In PIK Crim. 3d 52.04, it is recommended that no separate instruction be given defining reasonable doubt. In State v. Mack, 228 Kan. 83, 88, 612 P.2d 158 (1980), a similar issue was raised and disposed of as follows:
“The appellant contends the trial court erred in refusing to give the reasonable doubt instruction approved by this court in State v. Wilkins, 215 Kan. 145, 153, 523 P.2d 728 (1974). The trial court instructed the jury on reasonable doubt using PIK Crim. 52.02. Additional instructions defining reasonable doubt are unnecessary. State v. Ponds and Garrett, 218 Kan. 416, 421, 543 P.2d 967 (1975). See PIK Crim. 52.04.”
PIK Crim. 3d 52.02 was given herein.
Defendant argues that a separate instruction on expert testimony should have been given as such testimony played such a significant role in this case. PIK Crim. 3d 52.14 recommends that no separate instruction be given as to an expert as a witness. The modem trend has been to eliminate instructions which focus on the credibility of certain testimony. See State v. Willis, 240 Kan. 580, 731 P.2d 287 (1987).
We find no error or abuse of discretion in the trial court’s refusal to give the requested instructions.
The judgment is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
Bruce J. Manning appeals his jury trial conviction of aggravated robbery (K.S.A. 21-3427).
For his first issue, defendant contends that the trial court’s response to a question submitted by the jury constituted an abuse of judicial discretion. We do not agree.
Instruction No. 6 provides:
“The defendant is charged with the crime of aggravated robbery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally took property from the person or presence of Voris Bailey;
2. That the taking was by force or threat of bodily harm to Voris Bailey;
3. That the defendant was armed with a dangerous weapon; and
4. That this act occurred on or about the 25th day of July, 1991, in Wyandotte County, Kansas."
Instruction No. 7 provides:
“The State has the burden of proving the defendant is guilty. The defendant is not required to prove he is not guilty. You must assume tire defendant is not guilty unless the evidence convinces you of the defendant’s guilt.
“Your determination should be made in accordance with these instructions, and this is the test you should apply: If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty. If you have reasonable doubt as to any of the claims made by the State, you should find the defendant not guilty.”
The presiding juror submitted the following question:
“ ‘Claims’ referred to in item 7
“ ‘If you have . . . any of the claims . . . .’ What does ‘claims’ refer to?
“1. The entire testimony presented by die state
“2. The questions on #6
“3. Other.”
Upon receipt of the question, an in-chambers proceeding was had. Present were the trial judge, prosecutor, defendant, and defense counsel. The trial judge read the question and then stated:
“It would be my intention to call them out and tell them that the claim referred to in item seven are diose elements set out in Instruction No. 6 of the charge. The claims are not anydiing else but the things that must be proved beyond a reasonable doubt of those elements set out in Instruction No. 6.”
The State agreed, stating that the jury was “obviously confused” and needed the court to give additional instructions. Defense counsel disagreed and objected to the court’s answer, contending that the court should advise the jury to decide the case based upon the instructions and to reread the instructions if it had any questions concerning them.
The trial court recalled the jury and stated as follows:
“Mr. Belt, you sent me a question as follows: It’s got claims referred to item seven. If you have any of the claims, what does claims refer to? One, the entire testimony presented by the State; two, the questions on No. 6; or three, other. Instruction No. 7, when you get down to the part you’re referring to, your determination should be made in accordance with these instructions and the test you should apply is this:
“If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty. If you have reasonable doubt as to any of the claims made by the State, you should find the defendant not guilty. The claims, as that word is used in Instruction No. 7, is referring to the elements in Instruction No. 6. Instruction No. 6 sets out four particular elements flrat you must find each and every one of those elements beyond a reasonable doubt to make the finding that’s guilty of that charge. So the word claims refers back to those four items in Instruction No. 6.
“Mr. Belt, does this answer your question?
“MR. BELT: Yes.”
K.S.A. 60-248(e) provides:
.“If, after the jury has retired for deliberation, it desires further information as to any part of the law or evidence pertaining to the case, it may communicate its request through the bailiff to the court in the manner directed by the court, following which die court, after notice to counsel for the parties, may consider and- make such provision for a response to die request of the jury as the court finds to be required under the circumstances."
In State v. Bandt, 219 Kan. 816, 549 P.2d 936 (1976), a theft case, the jury advised that it was confused as to when the defendant had to have knowledge that the items he received had been stolen. The court allowed the prosecutor and defense counsel to discuss their points of view on the matter, but the court declined to give the jury further instruction.
We found the trial court’s refusal to clarify its original instructions reversible error, stating:
“In view of the confusion of the jury the trial court had a positive duty to clarify its former instructions by instructing the jury that die defendant must have had knowledge diat die property was stolen at die time it was delivered to him by Trammel. The failure of the trial court to give to the jury this additional information was clearly prejudicial and denied to the defendant a fair trial. We wish to make it clear that instances may sometimes occur in the course of a trial where the jury raises questions which are irrelevant or which are already adequately covered by the original instructions. Under those circumstances the trial court may decline to answer such questions and direct the jury to reread the instructions already given. A trial court is vested with a great amount of discretion in answering questions directed to him by a jury after the jury has begun its deliberations. The important consideration is that the jury be properly instructed on the essential issues presented at the trial and this is particularly true in a criminal proceeding where the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried.” 219 Kan. at 823-24.
In State v. Dunnan, 223 Kan. 428, 433, 573 P.2d 1068 (1978), we held:
“When by a jury’s questions to the trial court it becomes apparent that the jury is confused as to the essential elements of the various offenses of which the defendant may be convicted, it is the duty of the trial court to give the jury guidance by answering the questions accurately or by clarifying its prior instructions on the subject.”
The jury herein was clearly confused as to what “claims” the State had to prove beyond a reasonable doubt if the jury were to convict. The trial court accurately explained that “claims” used in Instruction No. 7 meant the elements set forth in Instruction No. 6. Defendant’s appellate contention that the trial court’s answer to the juiy’s question prevented the jury from properly evaluating the credibility of the complaining witness is without merit. We find no abuse of discretion in this issue.
For his final issue, defendant contends the trial court abused its discretion in imposing the maximum sentence upon the defendant without proper consideration of the sentencing policy and factors set forth in K.S.A. 21-4601 and K.S.A. 21-4606. The sentence imposed was 15 years to life.
The facts may be summarized as follows. On the evening of July 25, 1991, Voris Bailey was stopped at a red light at 5th and Troup in Kansas City. He was forced out of his automobile at gunpoint by a lone robber. The robber took money from Bailey, struck Bailey with the gun, and moved the Bailey vehicle. A second gunman approached Bailey from the rear and demanded more money, taking Bailey’s wallet. The second gunman left in a Cadillac parked across the street, with the first gunman following in Bailey’s vehicle. The wound to Bailey’s head required 12 stitches to close.
Later that evening the Cadillac was stopped by police officers. Defendant and Phillip Thomas, later identified by Bailey as the two gunmen, were in the vehicle.
The trial herein occurred on March 2-3, 1992. Sentencing took place on June 4, 1992. The transcript of the sentencing is some what confusing as defendant was present to be sentenced in three separate cases. In addition to the aggravated robbery conviction before us, defendant was also being sentenced on his pleas of guilty to attempted sale of cocaine (case No. 90-CR-2010B) and attempted aggravated battery (case No. 91-CR-2036).
In sentencing the defendant herein, the court stated:
“Mr. Manning, I looked at your cases hard to determine what sentence would be proper. You’re 22. You’re young. I don’t know what happened in your early, early years. At age 12 you had contact with the law that we know of. There was a burglary charge and you were given official probation and there was court supervision. Maybe we didn’t supervise you properly and maybe you weren’t listening. I don’t know what happened.
‘You had some other contacts, theft charges and probation. In 1985 on an auto theft charge you were waived to the criminal court to be tried and handled as an adult. In ‘86 there was possession of stolen property. You were sentenced to a term of 1 to 5 years and ordered to make restitution and probation and you keep getting in trouble. You were selling cocaine, or you pled guilty to attempted sale of cocaine.
“In the jury case it may be that the innocent victim was not an innocent victim, but you were out there with a weapon, a gun. You were on probation. You were on bond for another charge. After that trial there was a third case and you pled on that one.
“The Court by case law can look at everything that affects you in determining tire proper sentence. I’ve taken into consideration the fact that you escaped from the Wyandotte County correctional facility. I’ve looked at everything that was involved and that I’m required to look at. I realize the present statute of sentencing is that sentences are not to be punitive but look out for your benefit and help you. There’s new sentencing guidelines going into effect and at that time the sentencing basis will be punitive, to punish.
“In your case after looking at everything, Mr. Manning, I sentence you as follows . . . .”
In State v. Richard, 252 Kan. 872, 880-81, 850 P.2d 844 (1993), we stated:
“K.S.A. 21-4601 sets forth the legislative policy to be followed in the sentencing of criminal defendants and is to be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine, or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law. Although K.S.A. 21-4601 states the objectives of the corrections system, it does not require the sentencing judge to specifically consider those objectives as the judge must the factors in K.S.A. 21-4606. State v. Webb, 242 Kan. 519, Syl. ¶ 3.
"K.S.A. 21-4606(2) provides that:
‘(2) The following factors, while not controlling, shall be considered by die court in fixing the minimum term of imprisonment:
(a) The defendant’s history of prior criminal activity;
(b) The extent of tire harm caused by the defendant’s criminal conduct;
(c) Whether the defendant intended that his criminal conduct would cause or tiireaten serious harm;
(d) The degree of the defendant’s provocation;
(e) Whetiier there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(f) Whetirer the victim of the defendant’s criminal conduct induced or facilitated its commission; 1
(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.’
“It is the sentencing judge alone who uses his or her discretion to determine the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, the public safety, and the statutory guidelines for sentencing. State v. McDonald, 250 Kan. 73, 82, 824 P.2d 941 (1992).
“Each judge should develop his or her own personal technique for imposing sentence but should be sure to fulfill certain basic requirements. The judge should attempt to personalize the sentence in such a way that the defendant realizes that it is suited both to him or her individually and to the offense committed. The judge should neither add personal condemnation of the offender nor underemphasize the seriousness of the offense. The sentence should be pronounced in a careful and understandable manner, giving the reasons for it. The judge’s approach to the imposition of sentence can affect the whole response of the offender and any rehabilitative efforts to follow.
“The statutory factors which the judge shall take into consideration in determining the penalty to be imposed are enumerated in K.S.A. 21-4606. Where the sentence exceeds the minimum, the legislature intended that the sentencing judge place on the record a detailed statement of facts and factors the judge considered. Failure to do so does not always indicate the sentencing court abused its discretion. Each case is to be considered on its facts. See State v. McDonald, 250 Kan. at 82-83.
“Although the appellate courts have upheld sentences where the factors considered by the sentencing judge are not specifically enumerated, the appellate courts have repeatedly stated the better practice is for the trial judge to make a detailed record of the facts and factors considered in imposing sentence. See, e.g., State v. Crispin, 234 Kan. 104, 113, 671 P.2d 502 (1983).”
While it would have been the better practice for the trial court to have made a detailed record of the facts and factors considered in imposing sentence, we find no abuse of discretion herein.
The judgment is affirmed.
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The opinion of the court was delivered by
Davis, J.:
This appeal involves a class action filed by Kansas adult care homes challenging the Kansas Department of Social and Rehabilitation Services’ (SRS) procedural and substantive basis for Medicaid reimbursement. Medicaid is a joint federal and state program providing medical assistance, including nursing care, to the indigent, aged, and infirm. The defendant SRS is the designated single state agency for administration of Title XIX (Medicaid) programs in Kansas. Defendant Donna L. Whiteman was the appointed head of SRS at the time this action was initiated. The plaintiffs include a number of adult care nursing homes in the state and will hereinafter be referred to collectively as Americare.
SRS State Plan Amendment MS-87-03 reduced State Medicaid reimbursement to Kansas adult care homes effective January 1 through June 30, 1987. Americare filed their petition on January 26, 1987, seeking injunctive relief against State Plan Amendment MS-87-03. Injunctive relief was denied. Americare amended its petition, attacking not only State Plan Amendment MS-87-03 but also attacking Medicaid reimbursement from 1982 through 1986. Americare advanced five counts in its amended petition; (1) declaratory relief pursuant to K.S.A. 60-1701 et seq.; (2) relief under 42 U.S.C. § 1983 (1988) against claimed violations of rights conferred upon plaintiffs under the federal Medicaid Act, 42 U.S.C. § 1396a et seq. (1988); (3) relief under the Kansas Act for Judicial Review and Enforcement of Agency Actions, K.S.A. 77-601 et seq.-, (4) certification of the plaintiff class under K.S.A. 60-223; and (5) damages in excess of $2,000,000.
The district court certified a plaintiff class under K.S.A. 60-223(b)(2) for purposes of counts (1) and (5), defining the class as “[a]ll persons and entities, (skilled nursing facilities (SNF), intermediate care facilities (ICF), and intermediate care facilities for the mentally retarded (ICF/MR)) who have provided or continue to provide Medicaid (Title XIX) services pursuant to 42 U.S.C. § 1396a et seq. and K.S.A. 39-708c(x) to the medically indigent, aged and infirm from and after January 26, 1982.”
On cross-motions for summary judgment, the trial court granted summary judgment to Americare with respect to State Plan Amendment MS-87-03 effective January 1 through June 30, 1987. The court concluded that SRS had failed to comply with procedural requirements of the federal Medicaid Act, Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (1988), and granted judgment in favor of the plaintiff class for the difference between the amount provided for in State Plan Amendment MS-87-03 and the amount reimbursed prior to Januaiy 1, 1987. The trial court also granted Americare attorney fees as the prevailing party under 42 U.S.C. § 1983, pursuant to 42 U.S.C. § 1988. On all other counts and issues including Americare’s attack for reimbursement from 1982 through 1987, the trial court granted summary judgment to SRS.
SRS appeals from the decision that its State Plan Amendment MS-87-03 failed to comply with the procedural and substantive requirements of the Medicaid Act, 42 U.S.C. § 1396a et seq. SRS also appeals the award of attorney fees, contending that the court did not have jurisdiction to consider Americare’s claim for relief under 42 U.S.C. § 1983. Americare cross-appealed, arguing that the court erred in finding that the Kansas Medicaid reimbursement system prior to MS-87-03 (from 1982 through 1986) did not violate the Medicaid Act.
In order to frame the issues raised by this appeal, some background concerning the Federal Medicaid Act is appropriate. The recent case of Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306 (2d Cir. 1991), provides a description of the operation of the Medicaid Act as well as some pertinent histoiy of the Act.
“The Medicaid Program (the Act) was established pursuant to title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (1988). It establishes a joint federal and state cost-sharing system to provide necessary medical services to indigent persons who otherwise would be unable to afford such care. Participation in this system is optional. Once a state does decide to participate, however, it must abide by certain requirements imposed by the Act and regulations promulgated thereunder. To qualify for federal reimbursement, a state must submit to the Secretary [of Health and Human Services] for approval a plan for medical assistance. 42 U.S.C. § 1396a(b). This plan ‘is a comprehensive written statement submitted by die agency describing tire nature and scope of its Medicaid program and giving assurance that it will be administered in conformity with the specific requirements of tide XIX, die regulations in . . . Chapter IV [of the Code of Federal Regulations], and other applicable official issuances of the Department.’ 42 C.F.R. § 430.10 (1987). Upon approval of a state plan by the Secretary, the state is entided to receive reimbursement from the federal government for a percentage of the funds it pays to residential healdi care facilities which provide medical assistance to Medicaid recipients. 42 U.S.C. § 1396b(a). The remainder of the costs under the Medicaid Program are borne by state and local governments.
“The Medicaid reimbursement mediodology has undergone a metamorphosis since its enactment in 1965. When enacted, the Act required reimbursement of the ‘reasonable cost’ of in-patient services rendered to Medicaid patients in nursing and intermediate care facilities. In 1972, Congress modified this ‘reasonable cost’ standard in response to a perception that the Secretary exercised too much control over reimbursement rates. See Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 110 S. Ct. 2510, 2515 (1990). The new law required states to reimburse ‘tire reasonable cost[s] ... as determined in accordance with methods and standards which shall be developed by tire State and reviewed and approved by the Secretary.’ Id. (quoting Pub. L. 92-603, § 232(a), 86 Stat. 1329, 1410-11 (1972)). Its enactment marked the beginning of congressional efforts to provide the states with greater flexibility to develop their own schemes of reimbursement. This trend continued with the enactment of the Boren Amendment in 1980. 42 U.S.C. § 1396a(a)(13)(A). See Omnibus Budget Reconciliation Act of 1980, Pub. L. 96-499, §. 962(a), 94 Stat. 2650. The Boren Amendment repealed the ‘reasonable cost’ standard of reimbursement existing under the prior law, replacing it with a standard which required reimbursement at rates that ‘are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities’. 42 U.S.C. § 1396a(a)(13)(A)' As currently formulated, the Boren Amendment provides that a state plan for medical assistance must
‘provide ... for payment ... of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State . . .) which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individuals eligible for medical assistance have reasonable access (taking into account geographic location and reasonable travel time) to inpatient hospital services of adequate quality. . . .’
Id.
“The Boren Amendment was enacted with two specific purposes in mind: (1) to provide the states with greater flexibility in developing methods of reimbursing skilled nursing facilities, intermediate care facilities, and inpatient hospital services; and (2) to increase the economy and efficiency of all plans. S. Rep. No. 139, 97th Cong., 1st Sess. 478, reprinted in 1981 U.S. Code Cong. & Admin. News 396, 744; see also Colorado Health Care Ass’n v. Colorado Dep’t of Social Servs., 842 F.2d 1158, 1165 (10th Cir. 1988). ‘The flexibility given the States[, however, was] not intended to encourage arbitrary reductions in payment that would adversely affect the quality of care.’ S. Rep. No. 139, supra, at 744.
“The regulations promulgated under the Act require that a state make findings ‘[w]henever the Medicaid agency makes a change in its methods and standards, but not less often than annually . . . .’ 42 C.F.R. § 447.253(b). Pursuant to that regulation, a state must find that ‘[t]he Medicaid agency pays for inpatient hospital services and long-term care facility services through the use of rates that are reasonable and adequate to meet the costs that must be incurred by efficiently and economically operated providers . . . .’ 42 C.F.R. § 447.253(b)(1)(i).” 928 F.2d at 1309-10.
The term “efficiently and economically operated facility” is not defined in the Boren Amendment, 42 U.S.C. § 1396a(a)(13)(A), and the Secretary of Health and Human Services has declined to adopt a definition, instead allowing the individual states to make that determination. 48 Fed. Reg. 56,049 (1983). Furthermore, the Secretary did not mandate that an individual state explicitly make such a definition, providing instead that the standards for reimbursement set by the state could implicitly act as a definition of an “efficiently and economically operated facility.” 48 Fed. Reg. 56,049.
Federal regulations provide that whenever the state Medicaid agency makes a change in its methods and standards, but not less often than annually, it must make the required findings. 42 C.F.R. § 447.253(b) (1993). However, it need only submit assurances to the reviewing agency, in this case the Health Care Financing Administration (HCFA), when the plan is actually amended. 42 C.F.R. § 447.253(a).
The first question raised in this appeal deals with the change in the amount of Medicaid reimbursement effected by State Plan Amendment MS-87-03, effective January 1 through June 30, 1987. SRS contends that contrary to the district court’s conclusion, SRS did engage in a bona fide findings process when implementing the change and therefore complied with the procedural as well as substantive requirements of the Boren Amendment.
The second question involves Americare’s contention that the entire Medicaid plan adopted by SRS from 1982 through 1987 violates the Boren Amendment. Specifically, Americare argues that the findings made by SRS during those years were not sufficient to comply with the Boren Amendment.
Kansas Reimbursement System
During the relevant times considered in this opinion, Kansas used a cost-related system to reimburse adult care homes. Under this system, the providers filed an annual cost report which is broken down into allowable costs for five different cost centers: (1) Administration; (2) Property; (3) Room and Board; (4) Health Care; and (5) Total. The allowable costs are then divided by the total resident days to establish a per diem rate. An inflation factor was added to the rate, resulting in a total per diem rate for each cost center.
Each individual cost center of each facility was then compared to the same category cost centers of similarly classified providers. Those that fell below a certain percentile limit were reimbursed for their costs. Those that fell above a certain percentile limit were reimbursed the cost of the facility at the percentile limit. Prior to January 1, 1987, these percentiles were:
Administration 75th percentile
Property 85th percentile
Room and Board 90th percentile
Health Care 90th percentile
Total 75th percentile
By way of illustration, if a facility had a per patient day administration cost of $4.50, this would be compared with all other facilities’ per patient day administrative costs. The per patient day administrative cost at the 75th percentile (i.e., 75% of the institutions had per patient day administrative costs at or lower than this cost) would be the upper limit for reimbursement. Thus, if the facility at the 75% percentile had a per patient day administrative cost of $4.50, each facility with a cost at or below that figure would get full reimbursement. However, a facility with a per patient day administrative cost of over $4.50 would be reimbursed simply $4.50. The other cost centers are calculated in the same manner.
However, the fifth or “Total” cost center adds a new wrinkle. This cost center compares the per patient day total cost of each institution. Under the system existing prior to January 1, 1987, the percentile for the Total cost center was the 75th percentile. Therefore, the upper limit for total cost reimbursement was established at the 75th percentile level. Because of the application of the Total cost center, a nursing home facility would be eligible for full reimbursement if each individual cost center was below the upper limit for that specific cost center, but would still be denied full reimbursement if its total for the four cost centers was above the upper limit established for the Total cost center.
In addition to the reimbursement rate, participating facilities are eligible to receive additional payments in the form of an efficiency factor, a 24-hour nursing factor, and a property value factor. The total of all these factors equals the total reimbursement that will be paid under SRS’s prospective system to that specific facility for the next year. According to SRS, a facility is considered to be economical and efficient if its total reimbursement meets or exceeds its total allowable costs.
On December 25, 1986, SRS announced in the Kansas Register State Plan Amendment MS-87-03, effecting a change in the Medicaid reimbursement rate for a period of 6 months commencing January 1, 1987. MS-87-03 reduced four of the five cost centers percentiles used to calculate the Medicaid reimbursement rate:
Administration Reduced to 60th percentile from the 75th percentile
Room and Board Reduced to 60th percentile from the 90th percentile
Property Reduced to 60th percentile from the 85th percentile
Total Reduced to 65th percentile from the 75th percentile
This change was made because of projected state revenue shortfalls for the fiscal year 1987. SRS estimated that the reduction would save $803,000 in state funds through fiscal 1987. The total reduction in Medicaid payments to facilities, considering the loss of matching funds which would have been paid by the federal government, totalled approximately $1.6 million. MS-87-03 was rescinded on July 1, 1987, as planned.
Standard of Review
The facts in this case are essentially undisputed. SRS claims that its actions complied with the requirements of the Boren Amendment. Americare claims that SRS’s actions did not comply. “Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
The Boren.Amendment requires a state to make reimbursement to providers through the use of rates which it “finds,” and “makes assurances” satisfactory to HCFA, are reasonable and adequate to meet the costs incurred by efficiently and economically operated facilities. SRS made such assurances to HCFA. The district court, however, found that SRS failed to engage in a findings process sufficient to allow SRS to make such assurances.
The law is well established that states must both procedurally and substantively comply with the requirements of the Boren Amendment. Abbeville General Hosp. v. Ramsey, 3 F.3d 797, 802 (5th Cir. 1993), cert. denied _ U.S. _, 128 L. Ed. 2d 194 (1994). See AMISUB (PSL) v. State of Colo. DSS, 879 F.2d 789, 795 (10th Cir. 1989), cert. denied 496 U.S. 935 (1990) (finding that, in passing on the validity of a state Medicaid plan, the court must determine whether the plan is procedurally and substantively in compliance); Illinois Health Care Ass’n v. Bradley, 983 F.2d 1460, 1463 (7th Cir. 1993). The responsible state agency must procedurally find that the rates are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities, and the plan must substantively adopt rates that are actually reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities. Abbeville, 3 F.3d at 802.
The standard of review in determining whether the state satisfied the procedural requirements of the Boren Amendment is a de novo standard. We are not alone in our conclusion on this issue. See Kansas Health Care v. Kansas Dept. of Soc. & Reh., 31 F.3d 1536, 1544 (10th Cir. 1994); Abbeville, 3 F.3d at 802; Temple University v. White, 941 F.2d 201, 209 (3d Cir. 1991), cert. denied 502 U.S. 1032 (1992); AMISUB, 879 F.2d at 795-96.
Some authority exists for the proposition that the standard of review on procedural compliance should be deferential. Those courts favoring a deferential standard of review do so because they believe that the approval of the reimbursement plan by the Secretary or HCFA is a product of state and federal agency action calling for a deferential arbitrary and capricious standard of review. See Illinois Health Care, 983 F.2d at 1462-63; Pinnacle Nursing Home, 928 F.2d at 1312-13. However, Abbeville notes that neither the Secretary nor HCFA participate in the findings process required by the Boren Amendment, but instead are limited to reviewing the assurances provided by the state agency. 3 F.3d at 802 n.7. We agree with Abbeville that the findings requirement under the Boren Amendment is not a product of state and federal agency action. Procedural compliance with the factual findings required by the Boren Amendment is subject to a de novo standard of review.
However, the question of whether a state has complied with the substantive requirements of the Boren Amendment, in our opinion, calls for a deferential standard of review. In a pre-Boren Amendment case where we dealt only with the issue of substantive compliance with the Medicaid reimbursement regulation, we adopted a deferential standard of review. In Country Club Home, Inc. v. Harder, 228 Kan. 756, 763, 620 P.2d 1140 (1980), this court stated:
“At the outset we should be mindful of the following rules. A court may not substitute its judgment for that of the Secretary of Social and Rehabilitation Services in determining which method is preferable to determine a reasonable cost-related basis for reimbursing long term care facilities, a court should not intrude into areas of administrative discretion, and it must protect the directors right to select among effective options."
Once a state agency has complied with the procedural requirements of the Boren Amendment, it is vested with substantial discretion in choosing among reasonable methods of calculating rates. See Wilder v. Virginia Hospital Assn., 496 U.S. 498, 520-24, 110 L. Ed. 2d 455, 110 S. Ct. 2510 (1990). Because of this discretion, substantive compliance with the Boren Amendment should be subject to a deferential arbitrary and capricious standard of review. See Abbeville, 3 F.3d at 803-04 (finding that a de novo review of the state’s factfinding process and arbitrary and capricious review of the findings and rates “strikes a balance between Congress’s view of the federal role under the Medicaid Act and general principles of federalism, which do not permit states to be final arbiters of their compliance with federal law”); Illinois Health Care, 983 F.2d at 1463; Pinnacle Nursing Home, 928 F.2d at 1313. We note that the 10th Circuit has held that substantive compliance with the Boren Amendment is a question subject to de novo review, with no deference given to the agency’s determination. Kansas Health Care, 31 F.3d at 1544; AMISUB, 879 F.2d at 795-96. Apparently, the 10th Circuit does so because it feels that a state agency’s determination of compliance with federal law is not entitled to the same deference afforded a federal agency. See AMISUB, 879 F.2d at 795-96. However, in light of the substantial discretion vested in the state agency and consistent with our prior decision in Country Club Home, Inc., we conclude that SRS’s substantive compliance with the Boren Amendment should be reviewed under the deferential standard of whether that agency’s action is arbitrary and capricious.
Procedural Compliance
The question of what a state agency must do in order to procedurally comply with the Boren Amendment has been litigated often. It is undisputed that a state agency is required to make findings that its rates are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities as a prerequisite to making assurances to HCFA. See Wilder v. Virginia Hospital Assn., 496 U.S. at 513 n.11. The question becomes what form the “findings” must take.
In AMISUB, the 10th Circuit Court of Appeals stated that the plain language of the Boren Amendment requires at the minimum that the state Medicaid agency make findings which identify and determine (1) efficiently and economically operated hospitals; (2) the costs that must be incurred by such hospitals; and (3) payment rates.which are reasonable and adequate to meet the costs of those hospitals. 879 F.2d at 796. This same test has been used by the Second Circuit Court of Appeals. See Pinnacle Nursing Home, 928 F.2d at 1314.
Other courts have found the test expressed in AMISUB to be too restrictive. In Illinois Health Care, the Seventh Circuit Court of Appeals found that a state is not required to identify a particular home or group of homes as efficient but must instead determine its own standard for an efficient and economic facility and then make findings which establish a nexus between the costs of operating those facilities and the proposed reimbursement rate. 983 F.2d at 1465. See Pinnacle Nursing Home; 928 F.2d at 1314. In Folden v. Washington State DSHS, 981 F.2d 1054, 1057-58 (9th Cir. 1992), the Ninth Circuit Court of Appeals held that the identification of efficient and economic facilities could be made implicitly by the method established for reimbursement and that the state agency’s findings process is sufficient if the agency has considered, on the basis of some reasonably principled analysis, whether its payment rates meet the standard set by the Boren Amendment.
In attempting to reconcile conflicting views on what a state agency must do in order to procedurally comply with the Boren Amendment, the Third Circuit Court of Appeals stated:
“Whether a court chooses to require a ‘reasonably principled analysis’ or a ‘nexus’ or a profile of efficiently and economically operated hospitals is not crucial in determining compliance with the findings requirement. All three of these cases adopt their own terminology to answer the same question. That is, what is the minimum quantum of evidence that an agency must possess in its cognition to substantiate its assurances . . . .” Abbeville, 3 F.3d at 805.
The court in Abbeville concluded that the state agency must show it conducted an objective analysis, evaluation, or some type of factfinding process to determine the effects of the rate on the level of care Medicaid patients receive. 3 F.3d at 805. As part of the factfinding process, the state agency must compare its rates against the objective standard of an efficiently and economically operated facility. 3 F.3d at 805.
An examination of cases dealing with the procedural requirement of the Boren Amendment, as well as an examination of the amendment itself, leads us to the following conclusions. First, the Boren Amendment clearly provides that the state agency is required to find that its rates are reasonable and adequate to meet tiie costs which must be incurred by efficiently and economically operated facilities. Wilder, 496 U.S. at 514-15. This requirement is not- a “mere formality that can be satisfied simply by having a state officer think a bit about hospital costs and then copy out the statutory language on a piece of paper, put the heading 'assurances’ on that piece of paper and send it to HCFA.” Abbeville, 3 F.3d at 805.
Second, the state agency is required to identify generally its standard for determining which facilities are efficiently and economically operated and the costs of operating those facilities. It is clear that such an identification can be implicit in the state’s methods and standards. Illinois Health Care, 983 F.2d at 1465. See 48 Fed. Reg. 56,051. In other words, a state agency may set a standard based on reported costs and services, wherein a facility with costs above this standard would not be fully reimbursed.
Finally, the state agency must make a finding that the rates at which it reimburses facilities are reasonable and adequate to meet the costs that must be incurred by those facilities. In doing so, it must conduct an objective analysis, evaluation, or some type of factfinding process to determine the effects of the rates on the level of care Medicaid patients receive and, as part of this process, compare its rates against the objective standard of an efficiently and economically operated institution. Abbeville, 3 F.3d at 805. There is a presumption that a state agency will engage in a bona fide finding process before it makes assurances. Kansas Health Care, 31 F.3d at 1539.
State Plan Amendment MS-87-03
SRS contends that the district court erred in determining that State Plan Amendment MS-87-03, effective January 1 through June 30, 1987, failed to comply with the procedural and substantive requirements of the Boren Amendment. The real argument on this issue centers upon whether SRS met the procedural requirements of the Boren Amendment when changing reimbursement rates in 1987.
SRS argues that budgetary considerations can be a reason or even the sole reason for rate adjustments. Regulations promulgated by HCFA state that “States may use budget considerations in setting their payment rates as long as the State can make a finding that the resulting rates are reasonable and adequate.” 48 Fed. Reg. 56,051 (1983). One of the major problems with the position of SRS is that it based its determination of which facilities were economically and efficiently run on the amount of appropriated funds available.
While budgetary considerations may play a part in determining the rates that are to be paid, there is no authority to allow budgetary considerations to play a part in determining which facilities are efficiently and economically operated. Rather, the standard for an efficiently and economically run institution should be an objective one. if SRS were allowed to make its determination of which facilities were economically and efficiently operated based on the amount of money available, then SRS’s rates would never be subject to review because, under SRS’s implicit definition, an economical and efficient institution is one which receives all of its necessary costs.
While states are not required to identify specific institutions which are efficiently and economically operated, there must be some objective benchmark against which payment rates can be judged. See Abbeville, 3 F.3d at 805. A state agency cannot simply change its definition of an efficiently and economically operated institution whenever it seeks to change its rates. Prior to MS-87-03, SRS determined that facilities were economically and efficiently operated if their administrative costs were at or below the 75th percentile, property costs were at or below the 85th percentile, room and board costs were below the 90th percentile, health care costs were below the 90th percentile, and total costs were below the 75th percentile when compared with other facilities of the same type. SRS, based on budgetary considerations, made a decision to reduce all categories to the 60th percentile by concluding that reimbursement at this rate reimbursed facilities in an amount reasonable and adequate to meet the costs that must be incurred by those facilities. The assumption is that the facilities are efficiently and economically operated facilities. No findings were made to determine whether something happened on January 1, 1987, to render a large portion of those facilities being reimbursed at the higher percentiles in 1986 inefficient or uneconomical.
Once SRS determined the benchmark it would use for defining efficient and economical institutions, it was bound by the Boren Amendment to adopt rates which would ensure that those institutions would receive, at a minimum, the costs that must be incurred by an efficiently and economically operated facility providing the same services. SRS makes a persuasive argument that the reimbursement rate selected does exactly that. We acknowledge that the rate of reimbursement may very well accomplish the objectives of the Boren Amendment, but there is no way we can measure whether this objective is accomplished. In order to comply procedurally with the Boren Amendment, SRS must make findings that the rates at a minimum are reasonable and adequate to reimburse those institutions.
SRS contends that it made such findings and that its decision was based on the following factors:
1. The agency’s decision that the resulting rate would still be within a “zone of reasonableness”;
2. the agency’s analysis of its overall budget for the best places to make cuts;
3. the governor’s budget directive;
4. comparisons of the financial consequences derived from the agency’s choice;
5. the effect of the percentile changes on the Medicaid program as a whole;
6. the fact that this court had previously approved of the percentile methodology in Country Club Home Inc. v. Harder and found that reimbursement at the 75th percentile was not, as a matter of law, unreasonable;
7. the Secretary of SRS’s judgment based on experience that the percentile adjustment would still produce reimbursement rates within the lower zone of the range of reasonableness; and
8. SRS’s projection that even with the lowered percentiles, rates would still be sufficient to reimburse the majority of the facilities the majority of their costs.
A review of the above findings convinces us that most findings are conclusions and assumptions having little to do with the procedural requirements of the Boren Amendment. None of the findings represent an objective analysis, evaluation, or some type of factfinding process to determine the effects of the rate on the level of care Medicaid patients receive. There is no indication that SRS compared its rates against an objective standard of an efficiently and economically operated facility.
A review of the record indicates that SRS compared the expected costs of facilities with those facilities’ expected reimbursement under the new method. SRS found that of the majority of the skilled nursing home facilities, 67%, would be reimbursed 90% or more of their costs adjusted for inflation, although only 29% would be reimbursed 100% of their costs. For intermediate facilities, 78% of the facilities would be reimbursed 90% or more of their costs adjusted for inflation, although only 37% would be reimbursed in full. SRS then analyzed those facilities which would receive 100% or more of their costs adjusted for inflation under the amendment to see if they were a representative sample. SRS determined that they were representative of the industry and, therefore, should set the standard for an economically and efficiently run facility.
The problem with SRS’s findings is that the findings take into account only those facilities that are expected to be fully reimbursed under the new amendment and then assume that those facilities are economically and efficiently operated. The findings assume that because these certain facilities are reimbursed in full, they are economically and efficiently operated and determine only that because they are economically and efficiently operated, they should be reimbursed in full. The findings do not take into account those institutions which were presumably economically and efficiently operated prior to the amendment, yet are now denied reimbursement for their expenses.
SRS argues that because its rates under MS-87-03 mean that the majority of the institutions receive 90% or more of their costs, the rates are within the zone of reasonableness to reimburse those costs which must be incurred by an economically and efficiently run facility. This may very well be so. However, because the method by which SRS determines what constitutes an efficiently and economically operated facility changes with an increase or decrease in rates, there is no objective standard by which the costs that must be incurred by efficiently and economically operated facilities can be determined. As a result, SRS’s findings do not compare reimbursement rates with an objective standard of an efficiently and economically operated institution as required by the Boren Amendment.
Our holding does not prevent SRS from adopting reimbursement rates which are lower than the rates at which it has previously reimbursed facilities in response to budgetary cuts. We recognize that budgetary constraints are a real problem and that SRS is often confronted with the unenviable choice of determining where and how cuts are to be made. However, in order to support such rate reductions, SRS must, at the minimum, make findings that the new rates are adequate to meet the costs which must be incurred by a facility meeting some objective standard of economic and efficient operation. It may not simply change its objective standard so that fewer facilities are considered economically and efficiently operated. To do' so would frustrate the purpose of the Boren Amendment, which is to ensure that, at a minimum, rates are reasonable and adequate to meet the needs of an efficiently and economically operated institution.
We do not hold that SRS may never change its definition of an efficiently and economically operated institution. SRS is free to adopt a new objective benchmark as long as it makes findings which establish a connection between its new standard and the actual costs facilities must bear. If SRS finds that some facilities at its current benchmark are not operating efficiently or economically, it is free to change the benchmark.
SRS’s findings with regard to MS-87-03 fail to establish a connection between the rates chosen and the costs which must be incurred by an efficiently and economically operated institution. As a result, MS-87-03 procedurally violates die Boren Amendment, and the district court did not err in holding it invalid. Because of our decision, we need not address whether MS-87-03 substantively violates the Boren Amendment.
Medicaid Reimbursement from 1982 through 1987
Americare asserts in their cross-appeal that the entire Medicaid reimbursement plan adopted by SRS from 1982 to 1987 violates the Boren Amendment. Americare argues that the .findings made by SRS during those years were not sufficient to comply with the Boren Amendment. We disagree.
The crux of Americare’s contentions is that SRS conducted no empirical analysis to determine whether its rates reasonably and adequately compensated efficient and economically operated facilities. Americare acknowledges that SRS need provide assurances to HCFA only when it amends its plan but notes that SRS must make annual findings that its rates are adequate to meet the Boren Amendment standard. See 42 C.F.R. § 447.253(b). Americare contends that SRS did not make adequate findings.
During the years in question, SRS had an established benchmark standard for determining which facilities were economically and efficiendy operated. As noted above, a facility was deemed to be efficient if its administrative costs were at or below the 75th percentile, property costs were at or below the 85th percentile, room and board costs were at or below the 90th percentile, and total costs were at or below the 75th percentile when compared with other facilities of the same type.
As the result of SRS’s payment scheme, all those institutions which were identified by SRS as being economically and efficiently operated were reimbursed not only at rates that were reasonably adequate to reimburse them for their necessary costs but also at rates which reimbursed these institutions for all of their allowed reported costs and, in some instances, above their reported costs. As long as the percentiles did not change, SRS had an objective standard which identified those institutions which were economically and efficiently operated as well as the costs that such institutions must bear as required by the Boren Amendment. Because SRS’s cost center percentiles did not change from year to year, the only findings that were necessary to comply with the Boren Amendment were that those institutions which had been identified as economically and efficiently operated were reimbursed for their necessary expenses. The payment methodology used by SRS made those findings implicit.
The distinction between the payment system prior to 1987 and the payment system implemented by MS-87-03 is crucial. When SRS set the percentiles in 1982, these percentiles implicitly provided the definition of institutions which were economically and efficiently operated. Instead of making findings based upon the benchmark established in 1982 and carried forth until December 31, 1986, for reimbursement rates after January 1 through June 30, 1987, SRS changed the standard for determining which institutions were economically and efficiently operated. At the same time, as held above, it made no findings to support this change.
Such a problem is not present, however, from 1982 through 1986. During those years, SRS had one standard which identified economically and efficiently operated institutions and had adopted rates which were linked to that standard and which by definition reimbursed those facilities meeting the standard for their nec essary costs. It was only when SRS decided to change the standard for this determination in response to budgetaiy shortfalls that problems arose. Since SRS adopted new rates without adequate findings, there was no way to determine whether the new reimbursement rates reimbursed those facilities which had previously been identified as economically and efficiently operated for their necessary costs. As a result, up until the adoption of MS-87-03, findings which indicated the costs of each institution were sufficient to allow SRS to comply with the Boren Amendment since SRS could be sure that every institution which had been identified by its standard as economically and efficiently operated was receiving at least its necessaiy costs, and in most cases, greater than its necessary costs.
Because SRS had an objectiye benchmark against which it could measure its rates, and because it made the requisite findings that its overall payment rates were sufficient to meet the costs of those institutions it defined as efficiently and economically operated, it complied with the procedural requirements of the Boren Amendment from 1982 through 1986.
Substantive Compliance with Boren Amendment from 1982 through 1986
The next question is whether SRS’s payment plan from 1982 through 1986 complied with the substantive requirements of the Boren Amendment. As mentioned above, SRS is required not only to find that its rates are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities but also to actually adopt rates which are reasonable and adequate. Wilder v. Virginia Hospital Assn., 496 U.S. 498, 514-15, 110 L. Ed. 2d 455, 110 S. Ct. 2510 (1990).
In reviewing SRS’s plan for substantive compliance, we adopt a deferential standard of review. See Abbeville General Hosp. v. Ramsey, 3 F.3d 797, 803-04 (5th Cir. 1993). We wifi only invalidate the plan upon a showing that SRS’s findings are arbitrary and capricious or are not supported by substantial competent evidence. See Kansas Racing Management, Inc. v. Kansas Racing Comm'n, 244 Kan. 343, 365, 770 P.2d 423 (1989). We keep in mind that HCFA has stated the phrase “reasonable and adequate” is not a precise number but rather a rate which falls within a range or zone of reasonableness. 48 Fed. Reg. 56,049. See Folden v. Washington State DSHS, 981 F.2d 1054, 1058 (9th Cir. 1992).
Although Americare alleges that the rates adopted by SRS fail to adequately reimburse efficiently and economically operated institutions, it points to no evidence which would support this conclusion. According to SRS’s findings, the payment system as it stood prior to the enactment of MS-87-03 fully reimbursed over 50% of the nursing facilities 100% of their allowable costs. We cannot say that these rates are arbitrary and capricious absent some showing that an institution which could be considered efficiently and economically operated was not being fully reimbursed for necessary costs. We .find no such proof in the record.
Americare makes no specific arguments regarding any of the other components of the reimbursement system such as the inflation factor, real and personal property factor, and 85% occupancy rule other than the basic argument that SRS’s reimbursement system violates the Boren Amendment. In its statement of facts, Americare hints that these factors also contribute to noncompliance. However, the record is devoid of proof that any of these factors have caused the rates adopted by SRS to substantively violate the Boren Amendment by causing them to fall below those which would be termed reasonable and adequate. We conclude that the Medicaid reimbursement from 1982 through 1986 did not violate the substantive requirements of the Boren Amendment and affirm the judgment of the district court on this issue. Because of our ruling on this issue, we need not consider SRS’s arguments that challenges the reimbursement system on the bases of statute of limitations, acquiescence, res judicata, and collateral estoppel.
Attorney Fees
SRS next argues that the district court erred in considering Americare’s claims under 42 U.S.C. § 1983 absent a claim for prospective relief. According to SRS, while providers can use 42 U.S.C. § 1983 as a mechanism to challenge the actions of state Medicaid agencies, the claim can only be for prospective relief.
As part of its contentions, Americare alleged that SRS’s actions violated Americare’s rights under the Boren Amendment, entitling Americare to damages and attorney fees under 42 U.S.C. § 1983 et seq. The district court agreed and entered judgment pursuant to Americare’s 42 U.S.C. § 1983 claim for damages arising out of the adoption of MS-87-03.
42 U.S.C. § 1983 provides a cause of action against any person acting under color of state law for violations of rights secured by federal statutes. Maine v. Thiboutot, 448 U.S. 1, 4, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980). In addition to damages, a prevailing party under 42 U.S.C. § 1983 can also receive attorney fees under 42 U.S.C. § 1988. The Boren Amendment creates a right enforceable pursuant to 42 U.S.C. § 1983 to have a state comply with the procedural and substantive requirements of the amendment. Wilder, 496 U.S. at 524.
SRS argues that while facilities may seek relief under 42 U.S.C. § 1983 for violations of the Boren Amendment, the suit may be only for prospective injunctive relief because the Eleventh Amendment bars the granting of retrospective relief against a sovereign state. SRS contends that because Americare’s claim under the amended petition is only for damages and attorney fees, the claim is not viable.
The Eleventh Amendment to the United States Constitution prohibits suits against sovereign states in federal court. However, the Eleventh Amendment is not a concern here because, contrary to SRS’s assertion, it does not apply to suits in state courts. Will v. Michigan Dept. of State Police, 491 U.S. 58, 63-64, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). The real question asserted by SRS is whether a state agency qualifies as a “person” under 42 U.S.C. § 1983. Because 42 U.S.C. § 1983 authorizes only suits against “persons,” if a state agency does not qualify as a person, a suit under 42 U.S.C. § 1983 cannot be maintained.
In Will, 491 U.S. at 71, the United States Supreme Court concluded that neither a state nor its officials acting in their official capacities are persons under 42 U.S.C. § 1983. However, a state official is considered a person when the action is one for injunctive relief. 491 U.S. at 71 n.10. This is because “official-ca- parity actions for prospective relief are not treated as actions against the State.” Kentucky v. Graham, 473 U.S. 159, 167 n.14, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985).
Although Wilder held that a facility could sue under 42 U.S.C. § 1983 for violations of the Boren Amendment, this authorization extended only to suits for prospective injunctive relief. 496 U.S. at 517-18. The Wilder Court noted that Congress had at one time passed and later repealed a statute commanding states to waive immunity from suit for violations of the Medicaid Act but concluded that the repeal of the statute should not foreclose an action for prospective injunctive relief. 496 U.S. at 517.
Americare cites Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983), for the proposition that a state agency can be considered a “person” under 42 U.S.C. § 1983 in state court. However, Gumbhir was decided before Will v. Michigan Dept. of State Police. Furthermore, the court in Gumbhir held only that a state agency could be considered a person where prospective injunctive relief was sought. 231 Kan. at 513.
Because the district court’s decision did not extend to any challenges to Kansas’ Medicaid plan following the repeal of MS-87-03, and because MS-87-03 had been rescinded by the time judgment was entered, the district court had no jurisdiction to consider Americaré’s prospective claims under 42 U.S.C. § 1983. After MS-87-03 was rescinded in August of 1987, any judgment the court could have entered under this section would have been for retrospective monetary damages only, and these forms of relief are barred by the holding in Will.
The result of this lack of jurisdiction is that Americare cannot be classified as a prevailing party on a 42 U.S.C. § 1983 claim. Americare is therefore not entitled to attorney fees under 42 U.S.C. § 1988.
Affirmed in part and reversed in part.
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The opinion of the court was delivered by
Davis, J.:
The Federal Deposit Insurance Corporation (FDIC), as receiver for the insolvent Cedar Vale State Bank (CVSB), petitioned the Chautauqua County District Court for termination of its receivership. CVSB’s shareholders filed a general objection to termination without specifying the precise grounds for their objections. The basis for objection, as determined by the court upon questioning CVSB counsel, was that FDIC had breached its fiduciary duty to the shareholders and was negligent towards the shareholders by not considering a proposed merger with the Bank of Commerce and Trust in Wellington. The district court granted summary judgment to FDIC, concluding inter alia that the claims of the stockholders, if available at all, were subject to exclusive federal jurisdiction. We agree and affirm.
On January 21, 1988, the Kansas Bank Commissioner declared CVSB insolvent. Under the provisions of K.S.A. 9-1907, FDIC was appointed as receiver for CVSB. FDIC executed a purchase and assumption agreement with Chisholm Trail State Bank under which the Chisholm Trail State Bank agreed to, and did, purchase certain assets and liabilities of CVSB. FDIC then sold CVSB’s remaining assets to FDIC in its corporate capacity (FDIC-Corporate).
CVSB is owned by Cedar Vale Bank Holding Company, which in turn is wholly owned by W.C. Long, Jr. W. C. Long, Jr. also owns Sumner County Bancshares, Inc., which is the parent holding company of the Bank of Commerce and Trust Company in Wellington. It is the alleged refusal of FDIC to consider merger of CVSB and the Bank of Commerce and Trust Company that forms the basis of CVSB’s claim against FDIC. W. C. Long, Jr., is president, CEO; and sole stockholder of the Cedar Vale Bank Holding Company and Sumner County Bancshares, Inc. Any reference to CVSB shareholders necessarily refers to W. C. Long, Jr-
Within two years from the declaration of insolvency and the sale of CVSB’s assets, Cedar Vale Bank Holding Company, Sumner County Bancshares, Inc., and W. C. Long, Jr., individually and/or derivatively on behalf of the stockholders of the Cedar Vale State Bank and the Bank of Commerce and Trust Company brought suit in the Federal District Court for the District of Kansas against the State of Kansas, for and on behalf of tire State Banking Department; W. Newton Male, State Bank Commissioner; and the United States of America, for and on behalf of the Federal Deposit Insurance Corporation; Charles E. Thacker, FDIC Regional Director; Raymond K. Pritchett, FDIC Assistant Regional Director; and Michael W. Roe, FDIC Review Examiner.
The federal suit dealt extensively with the alleged refusal of FDIC to consider a proposed merger of the CVSB with the Bank of Commerce and Trust Company. The very first cause of action alleged in the amended petition is entitled “DENIAL OF A ‘MERGER.’ ” In this count, plaintiffs alleged that FDIC, acting in both its corporate and receivership capacities through its agents, representatives, and employees, and the FDIC officers above named, individually, negligently, and in reckless disregard and indifference did, with willful neglect of the mandates of the applicable state and federal banking statutes and laws, fail and refuse to approve a merger of CVSB and the Bank of Commerce and Trust Company. Plaintiffs alleged that had the merger taken place as requested, the result would have been that CVSB would have had primary capital above the four percent Kansas capital reduction requirement for agriculture and oil banks pursuant to K.S.A. 1987 Supp. 9-901b as well as above the soon-to-be-enacted Kansas legislative requirement of zero percent for all banks effective March 3, 1988.
Several other causes of action were advanced by the plaintiffs, including counts for equitable estoppel, denial of due process, denial of agricultural loan loss amortization, and tortious interference with business advantage. Specifically, in the seventh cause of action, the plaintiffs claimed that the
“FDIC, acting in its ‘receivership’ capacity through its agents, representatives and employees, and the FDIC officials above named, individually and negligently and in a reckless disregard and indifference, and with willful neglect of the mandates of the applicable state and federal banking statutes and law's, . . . breached the fiduciary duty owed to the depositors, creditors and stockholders of the Cedar Vale State Bank pursuant to K.S.A. 9-1906(a), K.S.A. 9-1907, and 12 U.S.C. § 1821(d), by failing and refusing to allow the merger of the Cedar Vale State Bank, Cedar Vale, Kansas and the Bank of Commerce & Trust Co., Wellington, Kansas.”
Plaintiffs asked for the following relief:
“A. Lost bank earnings in the amount of $150,000.00/yr. for two (2) years or $300,000.00;
“B. Lost investment in the amount of $1,400,000.00;
“C. Lost tax benefits in the amount of $120,000.00/yr. for two (2) years or $240,000.00;
“D. Lost salary for bank Chairman of the Board and President in the amount of $27,000.00/yr. for two (2) years or $54,000.00;
“E. Lost business reputation in the amount of $100,000.00 for claims totaling $2,094,000.00;
“F. Reasonable attorneys fees and expenses as prescribed by 42 U.S.C. § 1988;
“G. The costs of this action; and
“H. For such other and further relief as die Court deems just and equitable.”
The federal district court granted FDIC summary judgment. The court found that under K.S.A. 9-1724, the State Banking Commissioner is authorized to investigate and approve proposed mergers of state banks. However, as the federal district court notes, the statute expressly conditions such investigation and approval upon the prior submission of an explicit application for bank merger. The banks seeking merger must include a certified copy of the merger agreement approved by the boards of both of the merged banks.
As the federal district court noted:
“It is uncontroverted that neither [W.C. Long, Jr.,] nor Cedar Vale State Bank ever filed any application pursuant to K.S.A. 9-1724. In none of [Long’s] 1987 letters to the state did Long ever ask the state banking commissioner to do anything — to take any particular action. Instead, this correspondence is simply composed of ‘for your information’ type cover letters, which enclose copies of his letters to the FDIC.
“Nor is there any evidence that Cedar Vale State Bank ever formally applied with the state banking commissioner for permission to amortize the bank’s agricultural loans. There is good reason for this lack of evidence: amortization of agricultural loans is not a matter within the jurisdiction of the state banking authorities. It is a matter solely under the jurisdiction of the FDIC. Under 12 U.S.C. § 1923(j), the FDIC is given the responsibility for determining banks which are eligible for amortization. The state has nothing to do with it.
“Almost all of the plaintiff’s claims (whether couched as breach of duty, failure to investigate, etc.) are tied directly to the failure to approve Long’s merger and amortization plans. The lack of any compliance with the procedures for applying for merger under state law, and the exclusive federal jurisdiction over amortization, are fatal to all of these claims.
“The United States has also moved for summary judgment, contending that the plaintiff’s claims against it are barred by the discretionary exception to the Federal Tort Claims Act, 12 U.S.C. § 2680. See Cooper v. American Automobile Ins. Co., 978 F.2d 602 (10th Cir. 1992). The court agrees. The essence of the plaintiffs’ case is that the government wrongfully refused to approve the requests for merger and amortization. These are functions which are discretionary in nature and hence barred by the Federal Tort Claims Act.”
After further discussion, the court stated:
“The court finds that the Federal Tort Claims Act bars the present action against the United States. Here, the FDIC was vested with discretion in determining whether to permit the merger of Cedar Vale State Bank with the Wellington Bank of Commerce, and whether to permit the Cedar Vale State Bank to amortize its agricultural loans. The relevant statutes and regulations do not mandate the granting of request for merger or agricultural amortization to anyone who asks for them. Instead, the law grants die FDIC broad authority in deciding whedier to approve such proposals. This is precisely the kind of decision grounded in public policy which die discretionaiy function exemption was intended to protect.”
Summary judgment was entered on behalf of FDIC and all defendants on December 14, 1992. This decision was appealed to and affirmed without opinion by the Tenth Circuit Court of Appeals. 19 F.3d 1443 (10th Cir. 1994).
On April 2, 1993, FDIC filed its petition in the Chautauqua County District Court for termination of the CVSB receivership, indicating that losses incurred would be in the amount of $3,273,926.79 after application of the funds from the liquidation of the assets. FDIC alleged and CVSB agreed that no excess funds would be available for the receivership to distribute either to the creditors or stockholders of the bank. CVSB lodged no objections to the FDIC accounting and admitted that all claims of the receivership entitled to priority and all depositors’ claims, other than those to which FDIC Corporate is subrogated, have been paid.
In response to the petition for termination, CVSB shareholders filed what may be characterized as a general objection, without presenting any specific objections. The trial court, however, pressed the shareholders and determined that the sole reason for lodging the objections to discharge was the shareholders’ allegation that FDIC as receiver failed to consider or approve of merger with Bank of Commerce and Trust Company in Wellington, thereby breaching its fiduciary duty to the shareholders. The shareholders further claim that FDIC as receiver negligently performed its duties by failing to inform them of the order approving the sale of assets and liabilities of CVSB. According to the shareholders, their claims involve application of K.S.A. 9-1906, which provides:
“(a) The receiver, under the direction of the commissioner, shall take charge of any insolvent bank or trust company and all of its assets and property, and liquidate the affairs and business thereof for the benefit of its depositors, creditors and stockholders.” (Emphasis added.)
In granting summary judgment to FDIC, the court concluded:
“The Stockholders’ objections to the Receiver’s petition to confirm the acts of FDIC-Receiver and FDIC-Corporate raise issues alleging negligence, misfeasance, or malfeasance, arising out of acts that occurred in Januaiy, 1988. Most of the theories underlying stockholders’ objections were denied in the United States District Court for the District of Kansas in the case of Cedar Vale Bank Holding Company, et al. v. State of Kansas, et al, Case No. 89-1654-PFK. Legitimate or not, objections before this court not raised in 89-1654-PFK are collaterally estopped as well as barred by the pertinent statute of limitations. The Receiver has complied with all orders of this court. Claims of malfeasance or misfeasance against the FDIC in connection with obtaining or carrying out said orders, even if not barred, must be litigated in the United States District Court. The Stockholders’ request for hearing on whether the actions of the FDIC-Receiver and FDIC-Corporate should be approved is denied.” (Emphasis added.)
The relief sought by the shareholders in this case sounds in tort. Shareholders contend that FDIC’s failure to consider or approve a merger with the bank of choice of CVSB was a breach of duty imposed by Kansas law. Specifically, shareholders point to the provisions of K.S.A. 9-1905, wherein there is a duly imposed upon a state-appointed receiver of an insolvent or critically undercapitalized bank to liquidate the affairs and business thereof for the benefit of its depositors, creditors, and stockholders.
The shareholders argue that the state court has jurisdiction over their objections to discharge because their claim arises under the state law exception contained within the federal statute creating FDIC, 12 U.S.C. § 1819(b)(2)(D) (Supp. V, 1993). It is true that § 1819 excepts from federal jurisdiction certain claims that may be brought against the FDIC as receiver of a state bank. However, those claims subject to the state law exception involve only preclosing rights against the state-insured depository institution or obligation owing to depositors, creditors, or stockholders by the state-insured depository institution. 12 U.S.C. § 1819(b)(2)(D). The shareholders’ claims in this case involve neither pre-closing rights nor obligations owing to stockholders by the state-insured depository institution.
Under the predecessor statute, 12 U.S.C. § 1819 (Fourth) (1988), any suit in which the FDIC was a party as a receiver and which involved only the rights or obligations of depositors, creditors, and stockholders under state law was deemed not to arise under the laws of the United States, thus divesting federal courts of jurisdiction. See Federal Deposit Ins. Corp. v. Sumner Fin. Corp., 602 F.2d 670, 674-77 (5th Cir. 1979); Gross v. Federal Deposit Ins. Corp., 613 F. Supp. 79, 82 (D. Kan. 1985). The court in Sumner found that when acting as a receiver of an insolvent state bank, the FDIC possesses all the rights, powers, and privileges granted to the receivers by state law and is to be treated as any other receiver would be. 602 F.2d at 679.
In 1989, however, Congress passed the Financial Institution Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1819(b)(2)(B), which expanded federal jurisdiction in suits where the FDIC is a party. See Matter of Meyerland Co., 960 F.2d 512, 514-15 (5th Cir. 1992) (finding that the power conferred by FIRREA to invoke federal jurisdiction and remove from state court is substantial). The language of the state law exception in 12 U.S.C. § 1819 is now more restrictive. Under the more recent version, the exception applies only to those actions which involve pre-closing rights against the state-insured depository institution or obligations owing to depositors, creditors, or stockholders by the state-insured depository institution. 12 U.S.C. § 1819(b)(2)(D)(ii). As a result, Sumner and the other cases cited by the stockholders, which rely on the broader state law exception in 12 U.S.C. § 1819 (Fourih), are not of great value.
A plain reading of 12 U.S.C. § 1819(b)(2)(D)(ii) reveals that in order for the exception to apply, the claims must involve preclosing rights against the depository institution or obligations owed by the institution, which in this case would be CVSB, to depositors, creditors, or stockholders. The stockholders’ claims in this case are not pre-closing claims against CVSB, nor do they arise out of obligations owed by CVSB to its stockholders; rather, the claims involve post-closing tort claims against the FDIC as receiver for alleged breach of its fiduciary duty. As such, these claims, even though asserted against the FDIC as a receiver, do not fall within the exception in 12 U.S.C. § 1819(b)(2)(D)(ii). Therefore, these claims arise under federal, not state, law. Since the shareholders’ claims do not fall under the state law exception, the question still remains whether such claims are subject to exclusive federal jurisdiction.
In FDIC v. Meyer, 510 U.S. __, 127 L. Ed. 2d 308, 114 S. Ct. 996 (1994), the Supreme Court discussed the relationship between the Federal Tort Claims Act and the Federal Savings and Loan Insurance Corporation’s (FSLIC) organic statute, 12 U.S.C. § 1725(c)(4) (repealed 1989). In Meyer, a discharged officer of a California-chartered savings and loan association filed suit against the FDIC for his termination without hearing in what he claimed was a violation of his due process rights. It should also be noted that FSLIC was abolished by FIRREA and FDIC was substituted for FSLIC in the Meyer lawsuit.
The Meyer court noted:
“When Congress created FSLIC in 1934, it empowered the agency ‘[t]o sue and be sued, complain and defend, in any court of competent jurisdiction.’ 12 U.S.C. § 1725(c)(4) (repealed 1989). By permitting FSLIC to sue and be sued, Congress effected a ‘broad’ waiver of FSLIC’s immunity from suit. [Citation omitted.] In 1946, Congress passed the FTCA [Federal Tort Claims Act] which waived the sovereign immunity of the United States for certain torts committed by federal employees. 28 U.S.C. § 1346(b). In order to ‘place torts of “suable” agencies . . . upon precisely the same footing as torts of “nonsuable” agencies,’ [citation omitted], Congress, through the FTCA, limited the scope of sue-and be-sued waivers such as that contained in FSLIC’s organic statute. The FTCA limitation provides:
‘The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.’ 28 U.S.C. § 2679(a).
Thus, if a suit is ‘cognizable’ under § 1346(b) of the FTCA, the FTCA remedy is ‘exclusive’ and the federal agency cannot be sued ‘in its own name,’ despite tire existence of a sue-and-be-sued clause.” 127 L. Ed. 2d at 317-18.
In a footnote, the Court noted that the statute governing FDIC contains a nearly identical sue-and-be-sued clause, citing to the statute relied on by the shareholders in this case: 12 U.S.C. § 1819(a) (Fourth) (Supp. V, 1993), providing that FDIC “shah have power . . . [t]o sue and be sued, and complain and defend, in any court of law or equity, State or Federal.” 127 L. Ed. 2d at 316 n.3.
In discussing whether a claim is “cognizable” the Meyer Court noted:
“Section 1346(b) grants tire federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and ‘renderfed]’ itself liable. Richards v. United States, 369 U.S. 1, 6, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962). This category includes claims that are:
‘[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to tire claimant in accordance with the law of tire place where the act or omission occurred.’ 28 U.S.C. § 1346(b).
“A claim comes within this jurisdictional grant — and thus is ‘cognizable’ under § 1346(b) — if it is actionable under § 1346(b). And a claim is actionable under § 1346(b) if it alleges the six elements outlined above. See Loeffler [v. Frank, 486 U.S. 549], 562, 100 L. Ed. 2d 549, 108 S. Ct 1965 (§ 2679(a) limits die scope of sue-and-be-sued waivers ‘in the context of suits for which [Congress] provided a cause of action under die FTCA’) (emphasis added).” 127 L. Ed. 2d at 317-18.
Applying the above principles, the Supreme Court concluded that Meyer’s constitutional tort claim was not cognizable under the FTCA because to be actionable under 28 U.S.C. § 1346(b) (1988), a claim must allege, inter alia, that the United States “would be liable to the claimant” as “a private person” “in accordance with the law of the place where the act or omission occurred.” A constitutional tort claim such as Meyer’s could not contain such an allegation. 127 L. Ed. 2d at 318.
However, the shareholders’ action in this case falls within the definition of “cognizable” claims under § 1346(b). The claims are (1) against the United States, (2) for money damages, (3) for injury or loss of property, (4) allegedly caused by a negligently or wrongful act or omission of an employee of the government, (5) while acting within the scope of his or her office or employment, and (6) under circumstances wherein the United States, if a private person, would be liable to the claimant in accord with the law of the place where the omission occurred.
We note that the Supreme Court, in addressing element 6, has consistently held that § 1346(b)’s reference to “law of the place” means law of the state — the source of substantive liability under the Federal Tort Claims Act. 127 L. Ed. 2d at 318. Under Kansas law, a private person as well as the FDIC may act as a receiver of an insolvent bank. K.S.A. 9-1905; K.S.A. 9-1907. Thus, the United States, if a private person, depending upon the circumstances, could be liable to the claimant shareholders in accord with Kansas receivership law.
Nevertheless, the shareholders argue that their claims are not “cognizable” under the FTCA because they are not reasonably analogous to a claim for money damages for which a private person would be liable under Kansas law. The shareholders rely on the case of Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538, 542-43 (9th Cir. 1987), to support their contention that their claim is not cognizable under the FTCA. Woodbridge was decided under California law, and, as the court noted, “In California, only the state Superintendent of Banks or the FDIC, its appointee, can act as the receiver of a closed state bank. [Citation omitted.] Thus, the FDIC’s liability is not akin to that of a private individual under like circumstances.’ [Citation omitted.]” 815 F.2d at 543. Unlike California, Kansas law permits a private person to act as a receiver of a failed state bank.
The claims asserted by the shareholders in this case are “cognizable” under the FTCA. These claims are subject to federal jurisdiction and may not be litigated in state court. “State courts do not have jurisdiction of claims under the [Federal Tort Claims Act,] and jurisdiction is not obtained by removal even though the action might properly originate in federal court. 28 U.S.C.A. § 1346; Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 42 S. Ct. 349, 66 L. Ed. 671.” Martinez v. Seaton, 285 F.2d 587 (10th Cir. 1961).
The trial court was correct in its conclusion that “[c]laims of malfeasance or misfeasance against the FDIC in connection with obtaining or carrying out said orders, even if not barred, must be litigated in the United States District Court.” Based upon our resolution of this case, we need not decide whether collateral estoppel or the statute of limitations applies.
Affirmed.
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The opinion of the court was delivered by
Six, J.:
This is a jurisdiction case arising from the application of the Kansas Sentencing Guidelines Act, K.S.A. 1994 Supp. 21-4701 et seq. Ronald Randall appeals from the district court’s dismissal of his pro se motion for conversion to a guidelines sentence under the retroactivity provision of the Act. The district court held that it did riot have jurisdiction to review the motion, reasoning that Randall should have sought relief under K.S.A. 60-1507 (motion attacking sentence) or K.S.A. 60-1501 (writ of habeas coipus).
Randall’s motion raises only questions of law. Our standard of review is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Although we hold the district court had jurisdiction, we need not remand for the district court to consider the merits of Randall’s motion. We construe Randall’s motion as a properly filed 60-1507 motion and dispose of it on the merits under Chiles v. State, 254 Kan. 888, 869 P.2d 707, cert. denied 115 S. Ct. 149 (1994).
Facts
In May 1979, a jury found Randall guilty of aggravated robbery, K.S.A. 21-3427. His conviction was affirmed on appeal. State v. Randall, No. 51,191, unpublished opinion filed June 14, 1980. Randall remains incarcerated.
The Kansas Sentencing Guidelines Act took effect on July 1, 1993. The Act was made retroactive for a limited class of “less serious” prior offenders. See K.S.A. 1994 Supp. 21-4724; Chiles, 254 Kan. at 901.
Randall filed a pro se “motion for hearing regarding conversion of sentence under Kansas Sentencing Guidelines Act.” The motion stated it was “pursuant to [K.S.A. 1994 Supp. 21-4724] and objects to the Sentencing Guidelines Report prepared by the Secretary of Corrections.” Randall requested retroactive conversion to a guidelines sentence, which would make him eligible for release. He contended that the legislature intended retroactivity to apply to him or, alternatively, that equal protection rules required it. He further contended that the Department of Corrections (DOC) erred in computing his criminal history. He did not allege any error in the DOC’s assessment of the applicable severity level for his 1979 crime.
Randall filed his motion in Wyandotte County, where he had been convicted and sentenced. The motion was docketed and set for hearing, and counsel was appointed. When Randall’s motion came on for hearing, the district judge explained that he had no “court file” for Randall and he “didn’t know what to do with the case.”
The State explained that Randall’s 1979 crime, aggravated robbery, would be a severity level 3 crime, K.S.A. 1994 Supp. 21-3427, if he was sentenced under the guidelines. That fact, alone, excluded Randall from the pool of inmates eligible for retroactivity under K.S.A. 1994 Supp. 21-4724(b)(l). Thus, while the DOC notified Randall (through a “notification of findings,” presumably, but no such notice is in the record) that he was ineligible for conversion — prompting Randall’s motion — the DOC was not required by statute to issue Randall a “sentencing guidelines report” under K.S.A. 1994 Supp. 21-4724(c)(l). Counsel for Randall confirmed that the DOC had not issued a sentencing guidelines report in the instant case.
The State argued that since no sentencing guidelines report had been filed, Randall had no statutory right to file a motion for conversion challenging the DOC’s findings or the constitutionality of the guidelines under K.S.A. 1994 Supp. 21-4724(d)(l). Because Randall’s motion was styled as a motion under 21-4724(d)(l), the State argued that the district court lacked jurisdiction.
The district court agreed with the State that Randall had no right to file a motion regarding conversion to a guidelines sentence under K.S.A. 1994 Supp. 21-4724(d)(l). The judge concluded Randall’s “proper procedural steps would be to bring this pursuant to K.S.A. 60-1501 or 1507.” The district court dismissed the motion for lack of jurisdiction.
jurisdiction
The issue is whether the district court properly dismissed Randall’s motion for lack of jurisdiction or whether it should have construed the motion liberally and exercised jurisdiction. We favor the exercise of jurisdiction in this case. The answer to the jurisdiction issue, however, will have no bearing on the relief Randall seeks. Randall’s only substantive contention is that the limited retroactivity provision in the guidelines is unconstitutional. He relies on the arguments addressed and rejected in Chiles, 254 Kan. 888. Randall advocates overturning Chiles. We are not persuaded by his argument.
K.S.A. 1994 Supp. 21-4724(c)(l) required the DOC to review every inmate as of July 1, 1993, to determine who was eligible for conversion to a guidelines sentence. For inmates deemed eligible, the DOC was ordered to “prepare a sentencing guidelines report . . . which shall review and determine what the person’s sentence as provided by the [sentencing guidelines] would be as if the crime were committed on or after July 1, 1993.” 21-4724(c)(1) (Emphasis added). The legislature required the DOC to send a copy of the report to the inmate, the county or district attorney where the inmate was sentenced, and the sentencing court. 21-4724(c)(l).
After setting a time frame within which the DOC was to “complete and submit to the appropriate parties the report on all imprisoned inmates” deemed eligible for conversion, 21-4724(c)(5)-(7), the legislature provided the right to judicial review of DOC reports:
“Within 30 days of the issuance of such report, the person who committed the crime and the prosecution officer shall have the right to request a hearing by filing a motion with the sentencing court, regarding conversion to a sentence under the Kansas sentencing guidelines act to be held in the jurisdiction where file original criminal case was filed.” K.S.A. 1994 Supp. 21-4724(d)(l). (Emphasis added.)
Under 21-4724(d)(2), the sentencing court would then “determine the applicable sentence as prescribed by the Kansas sentencing guidelines act.” Thus, offenders eligible for conversion were provided a specific avenue of judicial review of their sentencing guidelines report. See State v. Gonzales, 255 Kan. 243, 247, 874 P.2d 612 (1994) (holding that by authorizing district court review of sentencing guidelines reports, the legislature “implicitly authorized appeal” from the district court’s decision).
The legislature provided no similar avenue in 21-4724, however, for inmates deemed ineligible for conversion by the DOC after its initial review. Apparently, inmates initially deemed outside the retroactivity pool by the DOC have been issued a piece of paper called a “notification of findings.” It does not appear that the DOC has made a standard practice of sending copies of these notification of findings to sentencing courts, as it must when it issues a sentencing guidelines report.
Randall would have fallen into this “ineligible” category. His aggravated robbery conviction is a severity level 3 crime under the guidelines, which disqualifies him from conversion. See K.S.A. 1994 Supp. 21-4724(b)(l). Randall does not dispute that his crime is a severity level 3.
Despite his exclusion from the 21-4724(d) judicial review procedure, Randall, and we understand other inmates deemed ineligible for conversion by the DOC, proceeded to file a motion for conversion in the sentencing court, styled under 21-4724(d). In Randall’s case, the district court reached a plausible conclusion under the plain language of 21-4724, holding that it lacked jurisdiction over the motion for conversion because no sentencing guidelines report had been filed. In other cases, however, we understand district courts have reached the merits of motions like Randall’s, either missing the technical distinction between whether the appeal originated from a sentencing guidelines report or notification of findings, or declining to view the distinction as jurisdictional.
The district court instructed Randall to request the same relief in the same court by using the 60-1507 motion label. We have previously “converted” mislabeled motions into permissible 60-1507 motions in the interest of judicial economy. See State v. Bradley, 246 Kan. 316, 318-19, 787 P.2d 706 (1990) (converting on appeal an untimely motion for new trial based on newly discovered evidence under K.S.A. 22-3501 into a 60-1507 motion). We do so here. We note that the Court of Appeals recently reached the same conclusion. State v. Mejia, 20 Kan. App. 2d 890, 894 P.2d 202 (1995).
Mislabeled pro se motions for sentence conversion under 21-4724(d) may be properly viewed as 60-1507 motions. Where district courts overlook the jurisdictional issue entirely, appellate courts can review the merits as if the district court properly exercised jurisdiction under 60-1507. In cases like Randall’s, where the district court dismissed for lack of jurisdiction and where the inmate’s substantive contention raises purely a question of law, a remand is unnecessary.
We conclude that the district court incorrectly dismissed for lack of jurisdiction. Randall’s motion is to be construed as one under K.S.A. 60-1507. Randall’s motion is denied. See Chiles, 254 Kan. 888.
Judgment reversed and K.S.A. 60-1507 motion denied.
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal from the trial court’s denial of defendant’s motion for an evidentiary hearing to convert his preguidelines sentences to guidelines sentences.
The defendant, John R. Lunsford, pleaded guilty to one count of aggravated arson and two counts of voluntary manslaughter in 1979.
The defendant was sentenced pursuant to the statutes in effect at the time of the offense. He was sentenced to 5 to 20 years for each of the voluntaiy manslaughter convictions and to 15 years to life for the aggravated arson conviction. The sentences were imposed concurrently for a controlling sentence of 15 years to life.
The Kansas Sentencing Guidelines Act (KSGA) became effective July 1, 1993. K.S.A. 1994 Supp. 21-4701 et seq. Pursuant to K.S.A. 1994 Supp. 21-4724, the Department of Corrections (DOC) reviewed defendant’s records and notified defendant that he had a least one offense with a severity level that made him ineligible for retroactive application of the sentencing guidelines. The DOC listed the controlling offense as aggravated arson. Voluntary manslaughter is a severity level 3 crime (nondrug grid). Aggravated arson is a severity level 3 crime (nondrug grid) if it involved a substantial risk of bodily harm. Severity level 3 crimes are ineligible for retroactive application of the sentencing guidelines.
Defendant then filed a motion in the Lyon County District Court seeking a hearing regarding conversion of his sentence under Kansas Sentencing Guidelines Act. The parties do not raise the question whether the DOC ruling is subject to a direct appeal. It is not. See State v. Randall, 257 Kan. 482, 894 P.2d 196 (1995). As in State v. Randall, we elect to treat this appeal as a K.S.A. 60-1507 motion.
The trial court in this case appointed an attorney to represent the defendant, set the motion for hearing, and ordered the defendant to show cause why his motion should not be summarily dismissed because a severity level 3 nondrug crime is ineligible for sentence conversion. The defendant, through his attorney, responded to the show cause order at a nonevidentiary hearing and argued that aggravated arson may be a severity level 3 or a severity level 6 crime and that if it is a level 6 crime he was entitled to conversion of his sentence.
Prior to July 1, 1993, aggravated arson was arson committed upon a building or property “in which there is some human being.” K.S.A. 21-3719. It was a class B felony. With the enactment of the KSGA, the crime of aggravated arson was divided into two severity levels, 3 or 6, depending on whether the offense involved a substantial risk of bodily harm. K.S.A. 1994 Supp. 21-3719. Looking only at the elements of the law in effect when the defendant committed the three crimes, aggravated arson would be a severity level 6 crime under the current law because presenting evidence that arson was committed upon a building or property in which there is a human being would not be evidence that there is a substantial risk of bodily harm. The defendant here would be eligible for conversion to a severity level 6 crime under the KSGA using the elements of the old aggravated arson statute. Under the current statute, when arson is committed upon a building or property in which there is a human being and it results in a substantial risk of bodily harm, aggravated arson is a severity level 3 crime, ineligible for conversion under the KSGA. The parties assume that the post-July 1, 1993, statute applies, and their arguments focus on whether the defendant’s crime involved a substantial risk of bodily harm. They make no argument that only the elements of the crime as it existed at the time of the offense can be considered in assigning a severity level. We therefore do not reach the issue of whether the DOC should look at the elements of the pre- or post-July 1, 1993, aggravated arson statute in determining the severity level of the defendant’s crime.
The State argued the defendant was serving three sentences, each of which is a severity level 3 nondrug crime. If a defendant is ineligible for conversion on any crime being served, he or she is ineligible for retroactive application of the sentencing guidelines. The State then concluded that since the defendant is serving two sentences for voluntary manslaughter, there would be no need for an evidentiary hearing. The trial court agreed.
On appeal, the defendant makes a one-page argument on this issue. He suggests the trial court erred in making reference to a pathologist’s testimony from the codefendant’s trial. See State v. Case, 228 Kan. 733, 738, 620 P.2d 821 (1980). He argues he should have been allowed to present evidence that there was no substantial risk of bodily harm because the two victims were dead when the arson was committed. He also mentions in his statement of facts that his trial counsel had informed the trial court there was a possibility the defendant had served his sentences for voluntary manslaughter.
The record contains no positive statement and no proffer concerning whether the voluntary manslaughter sentences were complete. Certainly, that information was available to both the defendant and his counsel. Defendant bears the burden of proving he is entitled to relief. We have repeatedly held the trial court need not have a hearing on mere conclusory statements of a defendant. Cf. State v. Jackson, 255 Kan. 455, Syl. ¶ 5, 874 P.2d 1138 (1994). The record makes clear that defendant is presently serving two sentences for voluntary manslaughter. Voluntary manslaughter is a severity level 3 nondrug crime. Thus, the defendant is ineligible for sentencing guidelines conversion. K.S.A. 1994 Supp. 21-4724.
Although we do not reach the issue of whether the defendant’s aggravated arson crime is a severity level 3 or 6 crime, we note the defendant pleaded guilty to aggravated arson, which by statute at that time required a human being to be in the building. We have since held that in the context of K.S.A. 21-3719, aggravated arson, a human being means a living person. State v. Kingsley, 252 Kan. 761, 781, 851 P.2d 370 (1993).
We also hold that a prisoner’s eligibility for retroactive sentence conversion based on the severity level of the crime is determined as of July 1, 1993, and if a prisoner is not eligible for sentence conversion on that date, subsequent events other than a reversal or new sentence imposed as a result of an appeal will not make the prisoner eligible for sentence conversion.
The defendant’s second argument on appeal is yet another attempt to have this court overrule Chiles v. State, 254 Kan. 888, 869 P.2d 707, cert. denied 115 S. Ct. 149 (1994). No argument is- presented that was not considered and rejected in Chiles. This issue is without merit and has been rejected by this court so many times it no longer warrants additional citations upholding Chiles.
Affirmed.
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On Januaiy 21,1994, this court placed respondent on probation for a period of one year with specific conditions of supervision and reporting. In re Wisler, 254 Kan. 600, 866 P.2d 1049 (1994).
The court finds that the Disciplinary Administrator has filed a report verifying that respondent has fully complied with all conditions imposed upon him by this court and recommending that respondent be discharged from probation.
This court, having reviewed the files and recommendation of the Office of the Disciplinary Administrator, finds that respondent James L. Wisler should be discharged from probation.
It Is Therefore Ordered that respondent is hereby discharged from probation and from any further obligation in this matter and that this proceeding is closed.
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to respondent.
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The opinion of the court was delivered by
Holmes, C.J.:
Anthony Solomon appeals from the district court’s denial of his motion to withdraw his plea of no contest to one count of possession of cocaine with intent to sell within 1,000 feet of a school, in violation of K.S.A. 65-4127a, a class B felony, and from the sentence imposed. We affirm.
On October 13, 1992, Anthony Solomon was charged with possession of cocaine with intent to sell within 1,000 feet of a school, possession of cocaine without a tax stamp (K.S.A. 79-5208), and unlawful possession of a firearm (K.S.A. 1992 Supp. 21-4204). Following a preliminary hearing, the defendant pled not guilty to all three charges.
On July 26, 1993, the date set for jury trial, defense counsel informed the court that the defendant wished to change his plea. After the court informed the defendant he had the right to a jury trial, he was presumed innocent, the State had the burden of proving his guilt, and he had the right to appeal from a guilty verdict, the defendant indicated he did not wish to change his plea that day. In response, the court told him the jury was waiting in the hallway and a trial would be held.
At that point, defense counsel explained that the defendant was on parole from Oklahoma and was scheduled to report to his parole officer the next week. The defendant did not want another conviction on his record, as it would probably result in the revocation of his parole in Oklahoma. Defense counsel requested that the court give the defendant the opportunity to plead, determine whether the plea was knowingly, intelligently, and voluntarily made, and then wait to make a finding of guilt until the defendant returned from Oklahoma. The court approved the request.
The prosecutor reviewed the terms of the plea agreement, which provided that, in exchange for a plea, the State would drop all charges except for possession of cocaine with intent to sell within 1,000 feet of a school and further agree not to refile charges for sale of cocaine within 1,000 feet of a school in another case. The State agreed not to request a fine but made no agreement regarding sentencing or sentence modification. When the defendant voiced some confusion over the terms of the plea agreement, the court declared a recess so the defendant could consult with his trial counsel. Following the recess, the defendant stated he understood all the terms of the agreement.
The trial court then inquired of the defendant: (1) if he had been threatened to change his plea (he had not); (2) if he had been promised anything good would happen if he changed his plea (he had been promised “nothing good”); (3) if he had been promised probation (he had not); (4) if he understood the charges (he did); and (5) if he understood the maximum penalty was life imprisonment or a $10,000 fine or both (he did). When the court asked how he wished to plead, the defendant stated, “No contest.” The court also advised the defendant of the possible effect of the sentencing guidelines upon any sentence imposed.
After the State provided a factual basis for the plea, the court found that the defendant’s plea was knowingly, voluntarily, and intelligently made. The court, in accordance with the defendant’s request, took the matter under advisement until after the defendant returned from his parole hearing in Oklahoma. The court also ordered that the presentence investigation be commenced.
On September 3, 1993, the defendant appeared before the court for sentencing. When the court asked if there was any reason why sentence should not be imposed, neither party reminded the court that it had deferred the finding of guilt at the prior hearing.
Following allocution, the court advised the defendant that the statutes required it to consider certain factors in sentencing the defendant. The court then stated that the only factor favorable to the defendant was his age of 24. The court noted the defendant’s two prior convictions for selling drugs and that the present crime was committed while the defendant was on probation or parole from the prior offenses. The court noted the defendant was not addicted to drugs and sold drugs solely to make money, and that in doing so the defendant accepted food stamps for drugs. In response to the defendant’s statements that he was a young black man with six children and had to make a living, the court stated he was not a good example to his children and there were other ways for him to support himself and his family. The court noted the defendant had put himself in this position and that it had to send a message to other drug dealers that they would be punished. The court imposed the maximum sentence of 15 years to life imprisonment.
Later that day, after the sentencing hearing had concluded, defense counsel reminded the court that it had not made a finding of guilt prior to imposing sentence. Court was reconvened and, with all parties present, the court reviewed the transcript of the plea hearing proceedings. The court then formally pronounced the defendant guilty and proceeded to resentence the defendant. During the procedure the defendant advised the court he wanted to withdraw his plea because he had not understood the proceedings and had not made the plea knowingly, intelligently, and voluntarily. Lengthy arguments from counsel and statements from the defendant followed. After completing the sentencing process the court denied the defendant’s oral motion to set aside the plea and again sentenced the defendant to 15 years to life. The court also directed the defendant to file a written motion to withdraw the plea. During the arguments and discussion on the defendant’s attempt to orally withdraw his plea, the only issue raised was that the defendant was misled as to the sentence he would receive and that he understood he would get a minimum sentence. The defendant asserted his trial counsel had misled him and had urged him to plead rather than go to trial.
The defendant’s trial counsel, Joseph L. McCarville, III, filed a written motion to withdraw the no contest plea and then was allowed to withdraw as counsel for the defendant in anticipation of being called as a witness at the hearing on the motion.
On September 14, 1993, a hearing was held on the defendant’s motion to withdraw his plea. McCarville was replaced by David F. Holmes, of Hutchinson, upon the defendant’s request. The defendant testified that, during the recess at the original plea hearing, he told McCarville he did not want to surrender his rights and get the maximum; McCarville expected the defendant would get minimal time and did not expect anything near the maximum; McCarville told him he would “be looking at something like a 3 to 10 tops”; and McCarville believed it would be in his best interests to plead because the other charges would be dropped and he would not have to worry about spending a lot of time in prison. The defendant asserted he changed his plea based solely on McCarville’s advice.
McCarville was then called as a witness and testified that beginning in May 1993, he discussed the possibility of a plea with the defendant and had sent a copy of the State’s offer to the defendant on June 3, June 30, and again on July 16. The defendant was out on bond at the time and did not respond. When counsel met with the defendant the week before trial was scheduled, the defendant indicated he would change his plea and not go to trial. Counsel testified he explained the charges, maximum penalties, and the State’s offer. The defendant was concerned about what the judge would do and wanted the State to recommend something less than the maximum. McCarville explained that he could not get the State to recommend anything less and that the sentence was up to the judge. McCarville said he could not make any deals with the judge.
McCarville testified that, during the recess at the plea hearing, the defendant was upset because the judge was emphasizing the maximum sentence of life imprisonment. The defendant believed the judge had already made up his mind and was going to give him the maximum sentence. McCarville explained to the defendant that the court had not pre-judged the case but wanted the defendant to understand the possible penalty. Counsel testified further that he did not tell the defendant he would probably be sentenced to 3 to 10 years but that he hoped he would receive that sentence and would recommend it at sentencing. In fact, the minimum sentence for a class B felony is 5 to 20 years, K.S.A. 21-4501(b), which the transcript reflects was the actual recommendation of counsel at the sentencing hearing.
The only arguments made at the hearing on the motion to withdraw the plea were based upon the defendant’s assertions he thought he would get a minimum sentence of no more than 3 to 10 years, that his counsel led him to believe he would get such a sentence, and counsel was in error in advising the defendant the minimum was 3 to 10 years. No other deficiencies in, or objections to, the plea and sentencing were raised in support of the motion to withdraw the plea.
Once again the court went through a lengthy review of the transcript and the prior proceedings and then found this was a classic case of a the defendant trying to withdraw an otherwise valid plea after receiving a maximum sentence. The court then denied the motion to set aside the plea, and this appeal followed.
At the outset the State, based upon the provisions of K.S.A. 22-3602(a) and our discussion in State v. Larry, 252 Kan. 92, 843 P.2d 198 (1992), raises an issue questioning our jurisdiction to hear this appeal. K.S.A. 22-3602(a) provides in part:
“No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or otlier grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507 and amendments thereto.”
In Larry, this court considered a direct appeal from a plea of guilty by the defendant. We considered the defendant’s arguments on the merits and found no abuse of discretion by the trial court in refusing to allow the withdrawal of the plea. The court, in discussing the nature of the appeal, stated:
“An appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court. A defendant is required to be sentenced without unreasonable delay after conviction by a judge or jury. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court must advise the defendant of the right to appeal. K.S.A. 22-3424(5). A defendant, however, may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere. K.S.A. 22-3602(a).” 252 Kan. at 95.
In syllabus ¶ 2 the court held: “No appeal shall be taken by a defendant from a plea of guilty before a district judge. K.S.A. 22-3602(a).”
The statements made by the court in Larry thus appear inconsistent with the action taken by the court in considering the appeal on the merits. We have long recognized certain exceptions to the broad language of K.S.A. 22-3602(a). In the recent case of State v. McDaniel, 255 Kan. 756, 877 P.2d 961 (1994), this court was faced with a direct appeal from the denial of a motion to withdraw a plea of guilty to first-degree murder. In discussing the application of K.S.A. 22-3602(a), this court stated:
“K.S.A. 1993 Supp. 22-3602 grants a defendant an appeal ‘as a matter of right from any judgment against the defendant in the district court.’ However, that statute precludes appeals ‘from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507 and amendments thereto.’
“K.S.A. 22-3210(d) permits the trial court to set aside the judgment of conviction and allow a defendant to withdraw his or her plea of guilty or nolo contendere before sentencing for good cause shown or after sentencing to correct manifest injustice. This court has previously heard and decided direct appeals from a district court’s refusal to permit withdrawal of a plea of guilty or nolo contendere without questioning jurisdiction. [Citations omitted.] Implicit in the legislature’s enactment of K.S.A. 22-3210(d), permitting withdrawal of a plea of guilty or nolo contendere independent of K.S.A. 60-1507, is the right to a direct appeal from the trial court’s denial of a motion to withdraw plea. [Citations omitted.] . . . We hold K.S.A. 1993 Supp. 22-3602 does not preclude a defendant who has pleaded guilty or nolo contendere from taking a direct appeal from die district court’s denial of a motion to withdraw the plea.
“This court has permitted direct appeals after a plea of guilty or nolo contendere. [Citations omitted.] Though these eases relate to direct appeal concerning sentencing issues, the same rationale applies. If a defendant is permitted to seek withdrawal of his or her plea of guilty or nolo contendere independent of a K.S.A. 60-1507 motion, as K.S.A. 22-3210(d) provides, there must also be a right to a direct appeal from the denial of drat motion. To require a defendant to first file a 60-1507 motion, which would be filed in the same court which has just denied withdrawal of the plea, before being permitted to appeal from the denial of withdrawal is not in die interest of judicial economy and should not be required. By permitting a defendant to seek withdrawal of his or her plea pursuant to K.S.A. 22-3210(d), die legislature implicitiy permitted that defendant to appeal from such denial, despite die appearance of 22-3602(a) to the contrary.” 255 Kan. at 758-60.
The statute does not preclude us from hearing a direct appeal from a denial of a motion to withdraw a plea of guilty or nolo contendere. Although the quoted portion of our opinion and syllabus in Larry are correct statements of the statutory provisions of K.S.A. 22-3602(a), the opinion is modified in accordance with our later decision in McDaniel. We conclude we do have jurisdiction over this appeal.
The defendant raises essentially two issues on appeal: (1) Did the trial court abuse its discretion in denying his motion to withdraw his plea, and (2) did the trial court abuse its discretion in imposing the maximum sentence?
In considering the defendant’s first issue we are faced with an argument as to the burden borne by the defendant on appeal. K.S.A. 22-3210(d) provides:
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea."
The defendant contends that, because the trial court failed to make a finding of guilt before imposing the initial sentence, he attempted to withdraw his plea before sentencing and the standard by which his motion should be judged is whether good cause was shown. Based on State v. Heffelman, 256 Kan. 384, 886 P.2d 823 (1994), the State argues the trial court’s failure to orally pronounce the finding of guilt prior to the initial sentencing did not invalidate the initial sentence and the defendant’s burden is to show manifest injustice.
Before sentencing, the trial court has discretion to allow withdrawal of a plea for “good cause.” After sentencing, a trial court has discretion to allow withdrawal of a plea to correct “manifest injustice.” K.S.A. 22-3210(d). The burden is less when a request is made before sentencing. State v. Harrison, 231 Kan. 489, 494, 646 P.2d 493 (1982).
In Heffelman, the issue was whether the trial court erred in sentencing the defendant without entering a formal judgment of guilt in open court at the time of the acceptance of the defendant's plea. We held:
“When the record, docket entry, and subsequent actions by die court and parties indicate that die defendant intended to plead guilty, die plea was properly taken, sentencing followed, and there was no objection to the process, the failure of the judge to orally articulate an express entry of judgment of guilt will not invalidate the plea, conviction, or sentence.” 256 Kan. 384, Syl. ¶ 5.
At the plea hearing in the instant case, the defendant requested that the trial court defer making a finding of guilt until after he reported to his parole officer in Oklahoma. The court granted the defendant's request and, after finding the plea was knowingly, intelligently, and voluntarily made, deferred the finding of guilt until he returned from Oklahoma. When the defendant next appeared before the court for sentencing, neither party reminded the court during the proceedings that the finding of guilt had been deferred. The court imposed sentence without objection. Heffelman controls the issue here, although in view of our ultimate decision the result would be the same regardless of whether the defendant’s burden is to show “good cause” or “manifest injustice.”
We now turn to the defendant’s argument that he was denied his constitutional and statutory rights and therefore his plea was not voluntarily, knowingly, and intelligently given and, as a result, his motion to withdraw the plea should have been granted.
K.S.A. 22-3210 sets forth the requirements for accepting a plea of guilty or no contest:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.
“(b) In felony cases the defendant must appear and plead personally and a verbatim record of all proceedings at the plea and entry of judgment thereon shall be made.”
When a guilty plea is entered, the defendant waives his or her privilege against self-incrimination, the right to trial by jury, and the right to confront his or her accusers. Waiver of these rights will not be presumed on a silent record. Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). A careful review of the record reflects that nowhere in the numerous hear-1 ings held by the trial court did it specifically advise the defendant that by pleading guilty he would be waiving his privilege against self-incrimination and his right to confront his accusers and the witnesses against him. In Boykin, 395 U.S. at 243, the Court stated:
“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination .... Second, is the right to trial by jury. [Citation omitted.] Third, is the right to confront one’s accusers. [Citation omitted.]”
K.S.A. 22-3210 embodies the requirements of due process set forth in Boykin. Trotter v. State, 218 Kan. 266, 268, 543 P.2d 1023 (1975).
While the defendant devotes a considerable portion of his brief to the argument that his plea must be set aside because he was not advised of his privilege against self-incrimination and the right to confront his accusers, those arguments were never presented to the trial court. These issues and arguments are raised for the first time on this appeal and, therefore, are not properly before the court for consideration. See State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992).
In McDaniel, the defendant appealed from the denial of a motion to withdraw his plea of guilty. In doing so he asserted the court failed to comply with the requirements of K.S.A. 22-3210. We stated:
“McDaniel argues that the district court erred in denying his motion to withdraw plea. He contends on appeal that the record does not reveal his plea was knowing and voluntary because the district court failed to comply with K.S.A. 22-3210. . . .
“McDaniel’s argument in his appellate brief concerning the trial court’s failure to comply with the requirements of K.S.A. 22-3210 was not presented to the trial court. A point not raised in the trial court cannot be raised for die first time on appeal. [Citations omitted.] Because McDaniel failed to present this argument to the trial court, die State has not had an opportunity to present evidence to refute McDaniel’s contentions; McDaniel is therefore precluded from raising this argument on appeal.” 255 Kan. at 765-66.
In Noble v. State, 240 Kan. 162, 727 P.2d 473 (1986), the petitioner was asserting he should be allowed to withdraw his pleas of guilty. The petitioner attempted to raise the failure of the trial court to inform him of his privilege against self-incrimination for the first time on appeal. The court stated:
“We find die petitioner’s pleas were made voluntarily with an understanding of die nature of the charges. The petitioner argues he wasn’t informed of the consequences of his pleas. The court informed the petitioner of and the petitioner waived his right to a trial by jury, his right to confront witnesses, his right to compel the attendance of witnesses, and his right to appeal to a certain extent. Now on appeal the petitioner argues his plea was not voluntarily and understandingly made because the arraigning court failed to inform him that by entering a plea of gudty he waived his Fifth Amendment privilege against compulsory self-incrimination. A thorough review of die petitioner’s 60-1507 motion and of the transcript of the hearing on that motion discloses that the petitioner failed to raise this argument in the trial court. The petitioner cannot raise a point on appeal that was not presented to the lower court. [Citations omitted.] Therefore, we will not consider this point on appeal.” 240 Kan. at 169-170.
The defendant’s arguments that his plea was not voluntarily, knowingly, and intelligently given because he had not been advised of his privilege against self-incrimination and his right to confront his accusers were never raised in the trial court and therefore are not properly before this court for consideration.
Next, the defendant asserts that he was induced to plead nolo contendere because of his counsel’s misrepresentations and incorrect advice as to the sentence he would probably receive. In doing, so he argues his counsel told him he would be looking at “3 to 10 tops,” which was an incorrect minimum sentence for a class B felony. As a result, lie contends his rights to effective counsel and a jury trial were violated.
To set aside a guilty plea because ineffective assistance of counsel has rendered the plea involuntary, the defendant must show that counsers performance fell below the standard of reasonableness and “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985) (adapting the test from Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]).
Defense counsel has an obligation to advise a defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant. Weigel v. State, 207 Kan. 614, 615, 485 P.2d 1347 (1971). A mere inaccurate prediction by defense counsel, however, does not constitute ineffective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 770, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970).
The trial court found withdrawal of the plea was not necessary because knowledge of the minimum sentence was not constitutionally required. The court also found the defendant’s only concerns at the plea hearing were that he did not want to have a felony conviction on his record at that time and that the State would be free to argue against any motion to modify. The defendant was advised repeatedly of the maximum sentence and penalties he could receive.
The defendant argues the record does not disclose that the minimum penalty was ever correctly conveyed to him. While McCarville testified at the hearing on the motion to withdraw the plea that he informed the defendant the minimum sentence was 3 to 10 years’ imprisonment and that he recommended that sentence to the court, the sentencing transcript reflects that Mc-Carville actually recommended 5 to 20 years’ imprisonment, the correct minimum sentence for a class B felony.
Contrary to the defendant’s arguments, the record, when viewed in its entirety, indicates the plea was knowingly and voluntarily made. The defendant was informed that, by changing his plea, he would waive his right to be presumed innocent, his right to a jury trial, and his right to appeal from a jury conviction. At the plea hearing, the defendant stated he understood the charges and the plea agreement, he had not been promised “anything good,” he had not been promised probation, and he understood the maximum penalty was life imprisonment.
McCarville explained to the defendant that it would be in his best interests to plead because, based on the evidence presented at the preliminary hearing, the jury was likely to convict him and he would be more likely to receive a sentence less than the maximum if the judge did not see the evidence firsthand. McCarville informed the defendant the judge was not bound by the State’s recommendation, nor could they make any deals with the judge. In response to the defendant’s concerns that the State would recommend the maximum sentence, McCarville advised him the prosecutor always recommended the maximum sentence and he did not believe the recommendation carried any particular weight with the judge. As a result, he did not believe the defendant should base his decision solely on the State’s position.
The defendant relies on Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986). In laea, the defendant was charged with six class A drug promotion felonies, four class B drug promotion felonies, one class C firearm possession felony, and one petty misdemeanor. Counsel incorrectly advised the defendant that he was subject to the mandatory minimum sentencing law (which required a minimum sentence of 10 years) and could avoid it only by pleading guilty. Counsel also advised him the chance of receiving an extended or life sentence was practically nonexistent and he had a chance to receive probation if he pled guilty. Additionally, counsel threatened to withdraw if the defendant would not plead guilty. The defendant’s brother threatened to withdraw the bail he had posted to secure the defendant’s release if the defendant did not plead guilty. The defendant pled guilty and was sentenced to three life sentences, a 20-year sentence, and a 10-year sentence. On appeal, the laea court held that defense counsel’s gross mischaracterization of the likely outcome, combined with the erroneous advice on the possible effects of going to trial, fell below the required level of competence. The court remanded the case to determine if the defendant showed any prejudice from counsel’s conduct.
As in Iaea, the defendant argues he was “grossly misadvised” of the minimum sentence for a class B felony. Importantly, the defendant never indicated to McCarville that he would plead only if 3 to 10 years’ imprisonment was the maximum sentence he would receive. Furthermore, the record does not support the defendant’s contention that McCarville promised him a certain sentence. At the plea hearing, McCarville informed the defendant he did not know what sentence the judge would impose. When the record is viewed in its entirety, McCarville’s advice that the defendant was more likely to receive something less than the maximum if he pled no contest was simply an inaccurate prediction. In addition, McCarville’s erroneous statement to the defendant as to the minimum sentence was not a major or controlling factor in the defendant’s decision to plead nolo contendere.
A careful review of the entire record reveals that the court did not abuse its discretion in finding that the defendant’s plea was voluntarily, knowingly, and intelligently given and that the motion to withdraw the plea should be denied. As stated by the trial court, “This is a classic case of after the fact when a defendant gets a maximum sentence he tries to withdraw the plea.” We have carefully considered all of the arguments on this issue which are properly before the court and find them to lack merit.
The defendant next argues the trial court abused its discretion in imposing the maximum sentence of 15 years to life imprisonment. He argues the trial court’s use of him as an example to the drug community ignored the mandate of individual sentencing and the policy of rehabilitation. He also contends the court’s use of certain information at sentencing was prejudicial, improper, and irrelevant.
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. McDonald, 250 Kan. 73, Syl. ¶ 4, 824 P.2d 941 (1992). “K.S.A. 21-4606(2) sets forth seven factors which, while not con trolling, are to be considered by the court in fixing the minimum term of imprisonment which is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.” 250 Kan. at 82.
The factors set forth in K.S.A. 21-4606(2) must be considered when imposing a sentence in excess of the minimum. K.S.A. 21-4601, sets forth the objectives of the corrections system. The sentencing court is not required to consider those objectives as it must the factors in K.S.A. 21-4606. State v. Richard, 252 Kan. 872, 880, 850 P.2d. 844 (1993).
When imposing sentence, the trial court specifically- stated it was considering the statutory factors. The court noted the defendant was only 24 but already had three convictions for selling drugs and committed the present offense while on probation or parole for the prior crimes. The defendant was not addicted to cocaine but was selling it for profit and as a way to make a living. The evidence indicated the defendant accepted food stamps in exchange for cocaine. The court emphasized the defendant had chosen his lifestyle and his conviction was his fault alone. The court felt it had to send a message to people in the defendant’s position that selling drugs would not be tolerated. Despite this statement, the court properly considered the statutory factors and tailored a sentence to fit the defendant’s individual needs, the seriousness of the offense, and the public safety. The trial court did not abuse its discretion in imposing the maximum sentence, and there is no contention that die sentence was the result of partiality, prejudice, oppression, or corrupt motive.
The defendant argues the trial court’s statement regarding the number of children he had fathered was improper. He argues incarcerating him to prevent him from fathering additional children is unconstitutional. The defendant takes the trial court’s statements out of context. The defendant told the court he was a young black man with six children and had to make a living. In response, the court told him he had not been a good example to his children and there were other ways to make a living besides selling drugs. While the court did comment on the fact the children were bom to four different women and speculated whether all the children knew the defendant, there is nothing to indicate the sentence imposed was to prevent the defendant from fathering additional children. Such a conclusion is rank speculation by appellate counsel. The argument is without merit.
Finally, the defendant argues the testimony of an Enid, Oklahoma police officer at the sentencing hearing was irrelevant and caused the court to use him as an example. The officer testified as to the defendant’s prior convictions in Oklahoma for selling drugs. The testimony was clearly relevant to the factors the court was required to consider in sentencing the defendant. No abuse of discretion or error in the sentence imposed has been shown.
The judgment is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
This case is before the court on two questions certified by the United States Court of Appeals for the Tenth Circuit pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. The questions are:
1. “Under Kansas law, does an action against corporate directors accrue only when those directors no longer control or ‘adversely dominate’ the corporation?”
2. “If so, does adverse domination delay accrual or toll the statute of limitations when the directors were guilty only of negligence, gross negligence, or breach of fiduciary duty?”
The facts are set forth in the certification order as follows:
"BACKGROUND
“LaForge was a director of the state-chartered Peoples Savings & Loan Association of Parsons, Kansas (PSLA). In April and May 1983, the PSLA directors approved participations in three loans for condominium projects in Texas. The Resolution Trust Corporation (RTC) claims that the directors’ approval was negligent, grossly negligent, and a breach of fiduciary duty. They allege in particular that the directors lacked the expertise to make reasonable judgments about whether to buy such participations; relied upon unverified representations of the loan originator or broker; did not require and analyze sufficient information to make a reasonable decision; did not establish procedures to monitor the analysis of participation loans by PS LA’s officers; and did not monitor or evaluate appraisal reports.
“LaForge resigned in February 1985, after the board received and reviewed a joint federal and state examination report criticizing two of the three participations. Two of the remaining seven directors also resigned after LaForge. However, the board filled only one vacancy: in January 1986, Beulah Neff, a longtime PSLA employee, became a director. Apparently the rest of the board remained the same at least until the Federal Savings & Loan Insurance Corporation (FSLIC) became the conservator of PSLA on February 28, 1989. The RTC subsequently became receiver of PSLA in May 1990. The RTC in its corporate capacity acquired this claim and filed its complaint on Februaiy 27, 1992.”
The underlying action and its procedural history may be described and summarized as follows:
In its complaint, the Resolution Trust Corporation (RTC) sought damages under Kansas common law from the bank officers and directors of PSLA for negligence, gross negligence, and breach of fiduciary duties stemming from PSLA’s purchase of the three loan participations which were approved by the board of directors in April and May 1983. A participation loan is generally originated by a bank, savings and loan association, or other financial institution which finds other lenders willing to participate in the funding of the loan, ordinarily for a fee which is paid by the borrower. The complaint makes no allegations of fraud, insider loan, self-dealing, or any profit-making by any defendant.
On July 30, 1992, LaForge filed a motion for summaiy judgment, contending that the action against him was barred by the Kansas two-year statute of limitations, K.S.A. 60-513. On September 30, 1992, the district court held that the action against LaForge was not barred because the principle of adverse domination, as articulated in Farmers & Merchants Nat. Bank v. Bryan, 902 F.2d 1520 (10th Cir. 1990), and other federal cases, tolled the Kansas statute. The district court decision herein is Resolution Trust Corp. v. Scaletty, 810 F. Supp. 1505 (D. Kan. 1992). On July 30, 1993, LaForge filed a second motion for summary judgment, which was denied on October 29, 1993. On January 19, 1994, LaForge’s petition to take an interlocutory appeal was granted. In due course, the certification order was issued herein by the Tenth Circuit.
Before proceeding to the discussion of the certified questions, one preliminary matter needs resolution. RTC has filed a motion to strike an issue raised by LaForge in a letter to the court dated Januaiy 20, 1995, under authority of Supreme Court Rule 6.09(b) (1994 Kan. Ct. R. Annot. 34). This issue (whether knowledge by regulators commences the statute of limitations) might be construed as being included within the bare language of Certified Question No. 1. However, as noted by RTC, this issue was not before the Tenth Circuit, although it had been argued at one time to the district court. Further, a reading of the Tenth Circuit’s discussion in the order of certification as to why Question No. 1 was being asked precludes a conclusion that the knowledge of regulators issue was intended to be included. We conclude the motion to strike should be granted.
QUESTION NO. 1
The adverse domination doctrine operates to toll the running of the statute of limitations when the directors or officers charged with wrongful conduct dominate the board of the corporation to the extent that there are no directors who have knowledge of the facts giving rise to possible liability who could have or would have induced the corporation to sue. Fanners & Merchants Nat. Bank v. Bryan, 902 F.2d at 1523. The doctrine arises due to the control of the institution by culpable officers and directors, which precludes the possibility of filing suit because these individuals cannot be expected to sue themselves or to initiate any action contrary to their own interests. Resolution Trust Corp. v. Fleischer, 826 F. Supp. 1273, 1276 (D. Kan. 1993).
The principle underlying the doctrine of adverse domination was articulated in Federal Deposit Ins. Corp. v. Hudson, 673 F. Supp. 1039, 1042 (D. Kan. 1987), as follows:
“This approach reasons that as long as a bank is dominated by the same wrongdoers against whom a cause of action exists, the statute of limitations is tolled. The rationale behind this theory is that the wrongdoers cannot be expected to bring an action against themselves. Only when a new entity takes control of the bank, be it a receiver or a new board of directors, can suit against the wrongdoers be brought as a practical matter.”
There are two major versions of the doctrine: the “disinterested majority” and the “single disinterested director” versions. In Hecht v. Resolution Trust, 333 Md. 324, 635 A.2d 394 (1994), the different versions were described. In the disinterested majority version, “claims by a corporation do not accrue and/or limitations do not run . . . until there exists a disinterested majority of nonculpable directors.” 333 Md. at 339. Control of the institution by culpable directors and officers gives them the power to withhold information concerning their wrongful activities, without which shareholders have no meaningful opportunity to bring suit. This version operates under a presumption that the culpable directors and officers cannot be expected to sue themselves or institute any action contrary to their own interests. See Federal Deposit Ins. Corp. v. Bird, 516 F. Supp. 647, 652 (D.P.R. 1981); Hecht, 333 Md. at 340. Limitations do not begin to run against an officer who resigns if the other culpable directors remain in control of the organization after the resignation because the remaining directors are unlikely to initiate action which could reveal their own wrongdoing. Federal Sav. and Loan Ins. Corp. v. Williams, 599 F. Supp. 1184, 1193 (D. Md. 1984).
Under the single disinterested director version, limitations would not run only so long as there was no one with knowledge of facts giving rise to possible liability who could or would have induced the corporation to bring an action. Hecht, 333 Md. at 340-41; see Bryan, 902 F.2d at 1522-23; Fleischer, 826 F. Supp. at 1276. Pursuant to this version, plaintiff has the burden of showing that the culpable directors had full, complete, and exclusive control of the corporation and must negate the possibility that an informed director or shareholder could have induced the corporation to institute suit. Bryan, 902 F.2d at 1522-23; see Fleischer, 826 F. Supp. at 1278.
Who has the burden of proof is one of the significant differences between the two versions. Under the disinterested majority version, the plaintiff enjoys a presumption that the course of action does not accrue so long as the culpable directors remain in the majority. Under the single disinterested director version, the plaintiff has the burden of negating that a single informed director could have induced the corporation into taking action.
The origin of the adverse domination doctrine remains obscure. In Federal Deposit Ins. Corp. v. Hudson, 673 F. Supp. at 1042, Judge Saffels described the doctrine as the “more modern” method for determining when a cause of action accrues against a bank's officers and directors. Judge Saffels cited cases arising from Depression-era bank failures where the cause of action was held to accrue when the bad loans were made. He then stated:
"The U.S. District Court in Puerto Rico took the lead in the acceptance of the ‘adverse domination’ theory. In FDIC v. Bird, 516 F. Supp. 647 (D.P.R. 1981), the court rejected the defendant’s advocation of the pre-Depression law of Corsicana and Curtis. Instead, the court recognized ‘the realities of the shareholders’ position, that, without knowledge of wrongful activities committed by directors, shareholders have no meaningful opportunity to bring suit.’ 516 F. Supp. at 651. The court reasoned it would deny logic to assume that the same individuals who allegedly committed a wrong would bring suit against themselves, or to assume that despite the directors’ control of the institution, the stockholders would have sufficient knowledge of the wrongdoing to bring suit themselves. Control of the institution implies control of information.
“The court went on to question the value of the pre-Depression cases as legal precedent.
“One need only recall the financial and economic disaster which befell the nation in 1929 and which led to various nationwide programs, including creation of the FDIC, (footnote omitted), to realize that earlier doctrines are suspect and subject to reexamination. Reference to more recent precedents is enlightening. In 1933 a new philosophy of corporate relationships and responsibilities was expressed . . . [t]he emphasis has shifted from a right of shareholders to inspect corporate records and affairs to a duty of corporate managers to disclose. 516 F. Supp. at 651-52.
“Other federal district courts followed the lead of the Puerto Rican court in Bird, recognizing die historical posture of the pre-Depression cases and die realities of corporate operation today.” 673 F. Supp. at 1042.
Regardless of the origin of the doctrine, one fact is clear. Most reported cases referring to the doctrine were decided in the 1980’s and ‘90’s and involve faded banks or savings and loans. Plaintiffs in the action wherein the doctrine is referred to are most likely to be the FDIC, FSLIC, or RTC. This is not surprising. Improvident loans cause financial institutions to bleed internally. The institutions seldom succumb quickly. They linger. Many years usually pass between the dates of the making of improvident loans and their cumulative effect of bringing the institution to its knees. More time goes by before there is a federal agency ready to file suit. Given the customarily short statute of limitations for torts, generally speaking, the statute would run before the action could be brought by the federal agency unless some special doctrine or exception exists which tolls the statute. Adverse domination has been widely recognized in many jurisdictions as the vehicle to overcome a statute of limitations defense in such situations. Kansas has not previously addressed the question of whether the doctrine of “adverse domination” is available in Kansas. Certified Question No. 1 asks that question.
K.S.A. 60-513(a)(4) sets a two-year statute of limitations for RTC’s claims of negligence, gross negligence, and breach of fiduciary duty. That provision provides a two-year statute of limitations for “[a]n action for injury to the rights of another, not arising on contract, and not herein enumerated.”
As noted by the Tenth Circuit in its certification order herein:
“The RTC filed its complaint within the time allowed by the federal statute of limitations. See 12 U.S.C. § 1821(d)(14). However, the federal statute of limitations will not revive claims that have already expired before the RTC acquires them. FDIC v. Regier Carr & Monroe, 996 F.2d 222, 225 (10th Cir. 1993). Federal common law deteraiines when federal claims accrued, even if the court borrows a state limitations period. See Farmers & Merchants Nat’l Bank v. Bryan, 902 F.2d 1520, 1522-23 (10th Cir. 1990); Ebrahimi v. E. F. Hutton & Co., 852 F.2d 516, 520-21 (10th Cir. 1988). State law, on the other hand, determines when state law claims accrued and whether they expired before the RTC took over. FDIC v. Cocke, 7 F.3d 396, 400 (4th Cir. 1993), petition for cert. filed, 62 U.S.L.W. 3659 (U.S. Mar. 21, 1994) (No. 93-1483); FDIC v. Dawson, 4 F.3d 1303, 1307, 1309 (5th Cir. 1993) (observing that state law determines in every respect whether state law claims expired before the FDIC acquired them), cert. denied, No. 93-1486, 1994 WL 101161 (U.S. June 13, 1994); Regier Carr & Monroe, 996 F.2d at 225; cf. O’Melveny & Myers v. FDIC, No. 93-489, 1994 WL 249558, at “5 (U.S. June 13, 1994) (‘[Section] 1821(d)(2)(A)(i) places the FDIC in the shoes of the insolvent S&L, to wnrk out its claims under state law, except where some provision in the extensive framework of FIRREA'provides otherwise.’). The RTC’s claims against LaForge are state law claims related to'a state-chartered institution. Kansas law therefore determines when those claims accrued and whether they expired before the RTC acquired them.
“Kansas law allowed PSLA two years to bring these claims against the directors. Kan. Stat. Ann. § 60-513(a)(4) (1983). The injury occurred when PSLA bought the loan participations in 1983. See Bryan, 902 F.2d at 1522. Therefore die claims against the directors expired long before the FSLIC become conservator in 1989, unless something tolled the statute' or delayed the accrual of tire claims.
“If ‘the fact of injuiy [was] not reasonably ascertainable’ until after the directors’ negligence caused ‘substantial injury,’ the action did not accrue ‘until the fact of injuiy [became] reasonably ascertainable to the injured party.’ Kan. Stat. Ann. § 60-513(b). If the directors’ knowledge is imputed to PSLA, the injured party could have ‘reasonably ascertained’ the fact of injuiy by early 1985 at the latest, when the board received the critical examination and LaForge resigned. The statute of limitations therefore still would have expired well before die FSLIC became conservator.”
K.S.A. 60-513(b) provides the framework for determining when the cause of action accrues for the purpose of starting the two-year period:
“Except as provided in subsection (c), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until die fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than ten (10) years beyond the time of the act giving rise to the cause of action.”
In applying the language of the statute, two alternatives are recognized, depending on the facts of the case. Under the first alternative, the cause of action “shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury.” K.S.A. 60-513(b); see Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, Syl. ¶ 1, 519 P.2d 661 (1974).
Under the second alternative, “if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.” K.S.A. 60-513(b). This concept has been called the “discovery rule,” Hecht v. First National Bank & Trust Co., 208 Kan. 84, 94, 490 P.2d 649 (1971), and has been applied in areas of medical malpractice and products liability where die injury from the negligent act may not become apparent until some time after the act actually occurred. Dearborn Animal Clinic, P.A. v. Wilson, 248 Kan. 257, 265, 806 P.2d 997 (1991). A variation of the discovery rule has been found to apply in legal malpractice tort cases. See, e.g., Pancake House, Inc. v. Redmond, 239 Kan. 83, 716 P.2d 575 (1986).
This second alternative may also be viewed as a statute of repose. See A.S.I. Inc. v. Sanders, 835 F. Supp. 1349 (D. Kan. 1993). “A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though a cause of action may not have yet occurred. It is substantive.” Harding v. K. C. Wall Products, Inc., 250 Kan. 655, Syl. ¶ 6, 831 P.2d 958 (1992). Whether an accrual or a tolling doctrine is involved, however, may be a distinction without a difference, since the result is the same. As the Maryland appellate court stated:
“Although we recognize, and will address, this distinction for purposes of the arguments herein, it has not been recognized by the majority of courts discussing the doctrine of adverse domination. Where adverse domination has been labeled an accrual doctrine and where it has been termed a tolling doctrine the application has been the same: to prevent limitations from running so long as a corporation is controlled by individuals against whom the corporation would have a cause of action." Hecht v. Resolution Trust, 333 Md. at 339 n.11.
A corporation is legally a “person,” but it has no capability of action except through others. Knowledge to a corporation can only come through its officers, directors, or employees, as the case may be. When does a corporation have knowledge under K.S.A. 60-513(b) that it has been wronged by its directors? The purpose of commencing the running of the statute when the injury is reasonably ascertainable is to afford the injured party a time period to take legal action against the party or parties who caused the injuiy. If the parties who caused the injury control the corporation, the corporation cannot take action to make itself whole unless those individuals who would be defendants in the action instigate and authorize the action. If the potential defendants take no such action, the corporation has no power to act.
In the recent case of Clark v. Milam, 192 W. Va. 398, 402, 452 S.E.2d 714 (1994), also arising on a very similar certified question, the highest West Virginia court stated:
“We agree with the Receiver that a corporate plaintiff cannot ‘discover’ injuries to the corporation caused by those who control the corporation. Thus, and in accordance with our overwhelming precedent, the discovery rule requires that the limitation periods on tort claims by a corporate plaintiff or its successor (here the Receiver) be tolled when the corporation has been prevented from ‘knowing’ those claims existed. Generally, a corporation ‘knows,’ or ‘discovers,’ what its officers and directors know. But when officers and directors act against the interests of the corporation, their knowledge, like that of any agent acting adversely to his principal, is not imputed to the corporation. [Citations omitted.]”
We conclude that the doctrine of adverse domination is applicable in Kansas for determining when, under K.S.A. 60-513(b), this fact of injury to the corporation by its directors was readily ascertainable by the corporation. In so doing, we are not judicially creating an exception to the statute, but are simply determining the test to be applied in determining when certain injuries are readily ascertainable by the corporation under the statute. This determination is consistent with the language and intent of the statute and our prior case law. We also conclude that the disinterested majority version of the doctrine is more appropriate to the language and purpose of the statute. This version is better suited for determining when the fact of injury was readily ascertainable by the corporation.
QUESTION NO. 2
LaForge, as well as amici curiae Kansas Bankers Association and Kansas Association of Defense Counsel, contend that if the theoiy of adverse domination is adopted, it should not be made applicable in cases such as this one, where the liability of corporate officers is based merely upon negligence and not fraud, self-dealing, or intentional wrongdoing. Their rationale may be best summarized in a recent Fifth Circuit case, F.D.I.C. v. Dawson, 4 F.3d 1303, 1312-13 (5th Cir. 1993), cert. denied 114 S. Ct. 2673 (1994), where adverse domination was held not to apply in negligence cases:
“We do not believe that Texas courts would extend the Very narrow doctrine,’ [citation omitted] of adverse domination to cases in which the wrongdoing by a majority of the board amounts to mere negligence. To do so would effectively eliminate the statute of limitations in all cases involving a corporation’s claims against its own directors. Taking our own case as a paradigm, it could almost always be said that when one or two directors actively injure the corporation, or profit at the corporation’s expense, the remaining directors are at least negligent for failing to exercise ‘every precaution or investigation.’ [Citation omitted.] If adverse domination theoiy is not to overthrow the statute of limitations completely in the corporate context, it must be limited to those cases in which the culpable directors have been active participants in wrongdoing or fraud, rather than simply negligent.
“The facts of the instant case demonstrate that die adverse domination theoiy is inappropriate when the majority of the board is merely negligent. The FDIC’s own evidence tended to show that most of TIB’s directors may have been negligent in fading to supervise the lending functions. Yet, at the same time, die board never concealed its ‘serious deficiencies’ from examination by the OCC or anyone else. Even after the OCC notified TIB’s board of its shortcomings in supervising TIB’s lending function, there is no evidence to suggest that an organized majority coalesced to prevent any other parties from discovering die problems. Thus, the danger of fraudulent concealment by a culpable majority of a corporation’s board seems small indeed when die culpable directors’ behavior consists only of negligence, and the presumption of such concealment that underlies the adverse domination theory is unwarranted.” 4 F.3d at 1312-13.
LaForge cites a number of recent federal cases which have embraced the theoiy of adverse domination but refused to extend it to actions involving mere negligence and breach of fiduciary duty. Resolution Trust Corp. v. Seale, 13 F.3d 850, 854-55 (5th Cir. 1994) (applying Texas law); F.D.I.C. v. Cocke, 7 F.3d 396, 402 (4th Cir. 1993), cert. denied 130 L.Ed 2d 12 (1994) (applying Virginia law); F.D.I.C. v. Dawson, 4 F.3d at 1312-13 (applying Texas law); Resolution Trust Corp. v. Farmer, 865 F. Supp. 1143, 1157 (E.D. Pa. 1994) (applying Pennsylvania law).
RTC’s position is that withholding the reach of adverse domination to cases involving negligence and breach of fiduciaiy duty would carve out unjustified special exceptions from the statutory discovery rule, K.S.A. 60-513, for corporate officers and directors. RTC reasons that K.S.A. 60-513, read in its entirety, undermines LaForge’s position. RTC points out that the statute already has a separate provision for cases dealing with fraud: K.S.A. 60-513(a)(3). This is not such a case. Fraud or other wrongdoing has not been alleged. Rather, this is a 60-513(a)(4) case, which embraces 60-513(b). Since we have routinely applied 60-513(b) to delay the accrual of negligence and breach of fiduciary duty claims such an exception for corporate officers and directors would be illogical and unjustified according to RTC. See, e.g., Gilger v. Lee Constr., Inc., 249 Kan. 307, 820 P.2d 390 (1991) (contractor negligence); Dearborn Animal Clinic, P.A. v. Wilson, 248 Kan. 257 (legal malpractice); Cleveland v. Wong, 237 Kan. 410, 701 P.2d 1301 (1985) (medical malpractice); Bick v. Peat Marwick & Main, 14 Kan. App. 2d 699, 799 P.2d 94, rev. denied 247 Kan. 703 (1990) (accounting malpractice).
As previously noted, the recent deluge of savings and loan association problems have resulted in many jurisdictions being asked by federal courts on certified questions what the law of the particular state is relative to adverse domination. Counsel for the parties herein are to be complimented on the in-depth briefing encompassing decisions from other jurisdictions and new opinions. Some jurisdictions reach their decision by crafting a new exception to the existing statute of limitations. Often the decision involves interpreting or modifying existing case law. In such circumstances, a court has considerable latitude to consider public policy and fine tune what it believes is the most appropriate form the rule should take and create limitations thereon where deemed appropriate. We, however, are not writing on a blank piece of paper herein. Our role is limited to determining when, under K.S.A. 60-513(b), the injury to a corporation by its directors is readily ascertainable to the corporation. In this narrow role there is no legal basis for us to pick and choose among negligence, gross negligence, or breach of fiduciary duty claims. The same rule must apply to all three types of claims unless the rule is legislatively modified. We conclude the adverse domination doctrine is applicable to all three types of claims. If exceptions are to be made, the legislature must make them.
Six, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
The defendant, Franklin E. Patterson, contends that the sentence imposed after his 1987 conviction for first-degree murder was illegal and appeals from the district court’s denial of his motion for an order nunc pro tunc.
The sole issue raised by defendant is whether the sentence imposed is ambiguous or incorrect. In 1987, defendant was convicted by a jury of one count of first-degree murder, one count of aggravated kidnapping, and one count of aggravated robbery. The State sought imposition of the Habitual Criminal Act. Finding that defendant had two previous felony convictions, the district court stated:
‘With respect to all three counts, I will invoke the Habitual Criminal Act and will triple the sentence imposed. Count Number 1, murder in the first degree, I’ll impose the sentence prescribed by statute, that is life. Count Number 2, aggravated kidnapping, I’ll invoke the sentence set forth in the statute, that is life. In Count Number 3, I will impose the maximum minimum sentence of fifteen years and triple that sentence. And I will impose the maximum life — I mean the maximum sentence provided by law, that being life. Count Number 2 will run consecutive to Count Number 1; Count Number 3 will run concurrent with Comat Number 2 but consecutive to Count Number 1.”
On direct appeal, defendant’s conviction of aggravated kidnapping was reversed, and the sentence for that conviction was vacated.
The issue in the present case was raised by a pro se motion filed by defendant in the district court in October 1993. He alleged that his sentence was illegal and requested a nunc pro tunc order to correct it. The district court denied the motion on the ground that the sentence is not illegal.
The offense for which defendant received the sentence in question occurred in 1986. The controlling penalty provisions are those in effect at the time the offense was committed. State v. Sutherland, 248 Kan. 96, 107-08, 804 P.2d 970 (1991). K.S.A. 21-4504(b) is the pertinent habitual criminal provision. It provided in part:
“If a defendant is coiavicted of a felony a third or subsequent time, the trial judge shall sentence the defendant as follows, upon motion of the prosecuting attorney:
“(2) the court may fix a maximum sentence of not less than the least nor more thaaa three times the greatest maximum sentence provided by K.S.A. 21-4501 and amendments thereto, for the crime.”
Based on this provision, the district court sentenced defendant to “imprisonment for a period of three (3) Life terms on the charge of First Degree Murder.”
It is defendant’s basic position that, irrespective of the sentencing judge’s intention, the sentence for murder cannot exceed one life term of imprisonment. He contends that the sentence is ambiguous and, therefore, illegal. See State v. Thomas, 239 Kan. 457, Syl. ¶ 4, 720 P.2d 1059 (1986). With regard to this court’s jurisdiction, it recently was stated:
“This court has general statutoiy jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. K.S.A. 1992 Supp. 60-2101(b). The court has specific statutory jurisdiction to correct an illegal sentence at anytime. K.S.A. 22-3504.” State v. Scherzer, 254 Kan. 926, Syl. ¶ 1, 869 P.2d 729 (1994).
Among tibe arguments made by defendant is that because the sentencing judge did not specify fhat the three life terms for murder were to run consecutively, they must run concurrently. Defendant cites State v. Royse, 252 Kan. 394, 845 P.2d 44 (1993), as authority for his argument. In Royse, the court stated: “K.S.A. 1991 Supp. 21-4608(1) provides in part that ‘[w]henever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently/ ” 252 Kan. at 396. However, in Royse, the trial court imposed maximum sentences for two separate counts of second-degree murder. The imposition of the Habitual Criminal Act was not involved.
The State correctly notes that K.S.A. 21-4608 applies only when there are separate sentences of imprisonment for different crimes and not to a single sentence for a single crime. The statute provides in pertinent part:
“When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as die court directs. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, diey shall be served concurrendy . . . .” K.S.A. 21-4608(a).
In imposing the Habitual Criminal Act for the conviction of first-degree murder, the court was not imposing “separate sentences of imprisonment for different crimes.” K.S.A. 21-4608 has no application in the sentence imposed on defendant for first-degree murder.
Defendant also argues that tripling a life term is not like tripling a term of a certain number of years. Tripling a 15-year term of imprisonment, for example, results in a 45-year term. It is a matter of multiplying 3 times 15. Defendant contends that tripling a life term, “like the result of multiplying by any non-numerical factor, is not obviously three consecutive life terms. Three times either zero or infinity remains zero or infinity; likewise, three times life remains life, unless the court unambiguously pronounces consecutive terms.” For support of this contention, defendant relies on State v. Pink, 236 Kan. 715, 696 P.2d 358 (1985), overruled on other grounds State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). In Pink, defendant Baldwin argued that the sentence pronounced by the district court judge did not match the sentence in the journal entry. 236 Kan. at 730. The court stated:
“We have read the statement made by the trial judge in sentencing Baldwin and find it clear that the court doubled the maximum Class B penalties in each of the Class B sentences by virtue of the Habitual Criminal Act, and did not double the Class A penalty because doubling a life penalty would be an exercise in futility. Baldwin argues that the court sentenced without enhancement under the Habitual Criminal Act. The defendant’s position is simply not supported by the record. The journal entry correctly reflects the sentence as imposed at the sentencing hearing.” (Emphasis added.) 236 Kan. at 730.
Clearly, the imposition of the Habitual Criminal Act for conviction of a class A felony was not at issue. This court was merely reporting what the sentencing judge said with regard to doubling a life penalty. The question which was considered by the court was whether the in-court pronouncement of sentence matched the journal entry. The question whether doubling a life sentence was futile was not before the court and was not considered by the court. This statement is not controlling, nor do we interpret it as an endorsement by this court of the sentencing judge's belief.
We note that defendant makes his “exercise in futility” argument without reference to K.S.A. 22-3717(b), which, at the time defendant was sentenced, provided eligibility for parole “after serving 15 years of confinement, without deduction of any good time credits.” We also note that it would be a real exercise in futility to invoke the Habitual Criminal Act for a defendant with a life sentence if, as defendant contends, the tripled sentence could run concurrently. As the State suggests, it is contrary to common sense to speak of a sentence which runs concurrent with or consecutive to itself. A life sentence enhanced by application of the habitual criminal provision remains a single sentence for a single offense.
Defendant seems to be arguing that, at best, the habitual criminal provision is ambiguous with regard to imposing a sentence of three times the greatest maximum sentence authorized. He cites State v. Hooks, 251 Kan. 755, 760, 840 P.2d 483 (1992), for the following rules of construction:
“Penal statutes must be strictly construed in favor of persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. State v. Cole, 238 Kan. 370, Syl. ¶ 2.”
We do not find 21-4504 to be ambiguous. The purpose of the habitual criminal provision of 21-4504 is to sanction the imposition of a more severe penalty for repeat offenders. The sentence under 21-4504 is to double or triple the sentence. By the very nature and purpose of the habitual criminal provision of21-4504, a concurrent sentence is not an alternative. In State v. Baker, 237 Kan. 54, 697 P.2d 1267 (1985), the defendant contended that a conviction for first-degree murder, punishable by life imprisonment, cannot be enhanced under the Habitual Criminal Act. This court disagreed, relying on State v. Beasley, 205 Kan. 253, 469 P.2d 453 (1970), cert. denied 401 U.S. 919 (1971), in which this court affirmed application of the Habitual Criminal Act to a fife sentence and stated:
“ ‘Beasley has cited no cases from this jurisdiction, and we know of none, which prohibits the imposition of a sentence as was imposed in the instant case. K.S.A. 21-107a applies when a person is “convicted a second time of a felony.” It is conceded Beasley had a prior felony conviction. In State v. Ricks, 173 Kan. 660, 250 P.2d 773 it was held:
“ ‘G.S. 1949, 21-107a is a law of general application and creates no exceptions with respect to any particular second or third felony previously committed.” (Syl. ¶2.)
“ ‘And in the opinion it was stated:
“ “The avowed purpose and salutary provisions of the habitual criminal law as a disciplinary measure for those whom previous conviction and punishment have failed to reform were stated early in State v. Woodman, [127 Kan. 166, 272 Pac. 132 (1928)] and need not be repeated here.” (l.c. 661.)
“ ‘In Johnson v. Crouse, 191 Kan. 694, 383 P.2d 978, it was said:
‘“. . . Our habitual criminal act merely provides a more severe penalty for the commission of a felony by an habitual criminal than by one who is a first time offender . . .” (l.c. 700.)
“ ‘Contrary to Beasley s contention, the sentences are not to run concurrently. In fact, the sentence is to be doubled.’ 205 Kan. at 259-60.” 237 Kan. at 56.
The Baker court concluded: “There is no language, either specifically or implicitly, in 21-4504 which excepts life sentences from enhancement. We conclude that the rationale of Beasley is controlling and that the trial court did not err in imposing sentence.” 237 Kan. at 57.
In the present case, the result of the district court’s invoking the habitual criminal provision of 21-4504 to defendant’s life sentence for first-degree murder is to impose three consecutive life sentences.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the next of kin of an intestate decedent, Gordon L. Weaver, from an order of the district court of Cheyenne County, Kansas, appointing three co-administrators to serve the estate. The substance of the order of the district court was a refusal to appoint the nominee of the next of kin as the sole administrator of the estate, thereby forcing upon the next of kin unwanted co-administrators whose interests were adverse to the next of kin.
The appeal calls for application of K. S. A. 59-705 (1) to the facts presented by the record.
On June 21, 1973, Gordon L. Weaver died intestate. At the time of his death the decedent owned government bonds, certificates of deposit, stocks and other securities and personal property with an approximate value of $2,400,000. He also owned 53M quarter sections of Cheyenne County, Kansas, land from which the estate received 70,000 bushels of wheat harvested in 1973.
Gordon L. Weavers wife predeceased him and he was not survived by any lineal descendants. Weavers parents predeceased him and were not survived by any descendants other than Gordon. Weaver’s paternal grandparents, were survived by six children in addition to Gordon’s father. There are a number of paternal cousins surviving Gordon. These people are referred to in the record as the Weaver side of the family. Gordon’s maternal grandparents were survived by four children in addition to Gordon’s mother. There are also a number of maternal cousins surviving Gordon, and they are referred to as the Grandstaffs. Gordon L. Weaver was survived by a total of 39 next of kin.
On June 23, 1973, two of the decedent’s in-laws petitioned the Cheyenne County probate court for' the appointment of four of decedent’s in-laws, A. A. Lindsten, John W. Lindsten, Delmont L. Price and Delmer Price, as co-administrators of Weaver’s estate.
On June 27, 1973, seven of the decedent’s paternal cousins petitioned the probate court alleging an interest in the estate and requesting the appointment of Edgar Robertson as the administrator of the estate.
Thereafter the decedent’s in-laws amended their petition to add Edgar Robertson to the list of co-administrators. Whereupon the next of kin amended their petition to request that Robertson be appointed to serve as the “sole administrator”.
After a hearing on both petitions on the 20th day of July, 1973, the probate court appointed A. A. and John Lindsten, Delmer and Delmont Price, and Edgar Robertson as co-administrators. From that determination the next of kin perfected an appeal to the district court.
The appellants produced four witnesses in the district court proceeding. Two of them, Lloyd Wallen and Dorothy Hayworth, were cousins of the decedent. They both lived some distance from Weaver’s home in Rird City. Wallen had served as an administrator in two estates and believed the task of administering an estate would be complicated by having more than one administrator. Roth witnesses stated they wanted Robertson appointed as the sole administrator of the estate. Since neither witness lived in the vicinity they were not personally acquainted with Robertson and relied upon information they had gathered from other relatives and Don PosÜethwaite concerning his qualifications to serve as the administrator. Neither witness had made any attempt to inquire into the in-laws’ capabilities of serving as administrators.
Another Weaver cousin who testified was Vera Reed. Mrs. Reed assumed an active role in urging the appointment of Edgar Robertson as administrator among the next of kin. She stated her reason for wanting Robertson as the sole administrator as follows:
“I would like to have Edgar Robertson appointed administrator because I think he is very capable and he has done work in administering estatefs]. He administered my parents’ estate and he has — he is well qualified; he is a man of integrity, and I believe that he could administer the estate. He is not a relative of either our family or of the Lindstens or Prices. I believe he is very impartial. I think he would administrate this estate in the way that it should be taken care of. He also has capability or facilities at the bank to help out with some of the foot work, shall we say, that goes into doing the work of an estate.”
Mrs. Reed completed a genealogy of the Weaver and Grand-staff heirs. She wrote letters to all of them informing them of what was transpiring on the estate and expressing her, and other relatives’, opinions concerning Robertson serving as the sole administrator.
In her first letter to the next of kin, Mrs. Reed stated the in- laws and their attorney, Mr. Kite, had “interest adverse to those of Gordon’s heirs.” Mrs. Reed testified she believed the in-laws would be uncooperative in settling the estate because they would want the estate to remain open as long as possible so they could continue to farm the Weaver land as tenants.
,The letter informing the heirs of the result of the probate court proceeding stated that all the cousins who appeared at the probate court were in complete agreement on the following things:
“1. We want Edgar Robertson, Bird City, Kansas, as sole administrator.
“2. We want Don Postlethwaite, St. Francis, Kansas, as the estate attorney.”
Also, Mrs. Reed sent the heirs a form to be signed, notarized and returned, which requested the court to appoint Robertson as the sole administrator and opposing the appointment of any of the in-laws. All 39 of the Weaver and Grandstaff heirs returned the Request for Appointment indicating they wanted Robertson as the sole administrator. These were admitted into evidence in the district court.
Edgar Robertson was the only other witness for the appellants. Robertson is 66 years of age, and the president of the Security State Bank in Bird City, Kansas. He also owns a section of farm land and farms some of it himself. He was Gordon Weaver’s banker approximately ten years, and did his tax returns.
Robertson has served as executor or administrator in ten or twelve estates. The largest one he has handled involved a little over $2,000,000. He does not believe having five co-administrators will be of any assistance to the disposition of the estate, and does not want four co-administrators to work with him. He testified he was competent to handle the estate as its sole administrator.
Robertson did not have any specific knowledge concerning the leasing and custom farming arrangements between Gordon Weaver and his various tenants, though he had a general understanding concerning the operations.
The witnesses produced by the appellees were the four in-law nominees for co-administrators, A. A. and John Lindsten and Delmont and Delmer Price, and an unrelated farm tenant of Gordon Weaver, Ralph Seymour.
Mr. Seymour had farmed.for Weaver for over 30 years. He regarded the Lindstens and Prices as excellent farmers, and testified the two families were closer to Weaver than anyone he knew of.
The Lindstens are nephews of Gordon Weaver’s predeceased wife. They have farmed together on Weaver’s land since 1946. Most of the land is farmed on a lease basis but they did farm a portion of it on a custom and partnership arrangement with Weaver. The lease was written but the custom farming agreement was oral. Under the custom farming agreement the Lindstens kept track of the time they spent on farming the ground and were paid for half of that time. In addition, they received three-eighths of the crop, with Weaver receiving five-eighths. Their practice was to settle their accounts in the fall after the wheat had been planted and it was apparent there was a healthy stand.
On June 21, 1973, when Weaver died, the Lindstens had worked the custom farmed ground three or four times which entitled them to $1,300 each. In the interim between Weaver’s death and the August 20, 1973, district court proceeding, they had worked it a few more times, and as a result they were entitled to more money.
A. A. Lindsten testified as follows concerning why he wanted to serve as administrator on the estate:
“Well, I am a creditor, and I think was as close to Gordon as anybody, and I think I knew as much about his business as anybody and especially all the farming business interest I know I am. And I would like to see the estate settled up in a proper manner.”
On cross-examination he agreed it was not necessary for him to be appointed administrator to assure the payment of his claim (arising from the custom farming) against the estate.
John Lindsten testified on cross-examination he wanted to be appointed permanent administrator because of Gordon Weaver’s dislike for Don Postlethwaite.
The Lindstens testified they knew all of Weaver’s tenants very well and were familiar with all of the agreements between the various tenants and Weaver. There were sixteen tenants on Weaver’s land. Weaver had written leases with all of his tenants except for the custom farming with the Lindstens and an oral lease with one other tenant.
The Prices are also nephews of Weaver’s predeceased wife. They have farmed land for Weaver for approximately 30 years on a landlord-tenant basis.
Delmont stated the following reason for wanting to serve as a co-administrator:
“I am a creditor for one thing, and the other reason would be that I know all the land and tenants, and I think I could serve to the best benefit of the heirs. And the other reason is Gordons dislike for Mr. Postlethwaite.”
After hearing the foregoing evidence the court made the following comments and announced the decision:
. . Now, of course another way this thing is unfortunate, having evidenced to this Court, and I have practiced law long enough, been on the bench long enough to know I think the primary fight in this case is between who is going to be the attorney for the estate. I don’t think there is any question in my mind about it. That is what brought on this quarrel between these parties. Nobody seems to be critical of Mr. Robertson or any of the Prices or Lindstens. It simply gets down to a point, and the attorneys know it, and I can tell you, when I came in this morning I tried to get them to agree to serve jointly either with Mr. Robertson or with all of these other men, too. They couldn’t agree on that. So this gets to be those unpleasant affairs where the Court has to decide the matter on this appeal. Both of the attorneys, Mr. Postlethwaite and Mr. Kite, have been friends of mine for a long time, and it is something I hoped I could get them to go in and work together on the estate because I think that probably this is a large enough estate they probably could merit the allowance of fees for two attorneys. But as I say, thy didn’t see fit to do it. . . .” (Emphasis added.)
The trial court made findings of fact and conclusions of law. The facts and conclusions which pertain to Edgar Robertson s suitability to serve as sole administrator of the estate are as follows:
* * a * a
“6. The actual controversy arising between all the parties in this case is who should be selected as attorney for the administrator or administrators. Evidently the attorney for appellants had represented Vera Weaver Reed in some previous estate or litigation and Mrs. Reed was very instrumental in inducing the remainder of the appellants to insist on the appointment of Edgar Robertson as sole administrator, and Don Postlethwaite as the attorney for such estate. Exhibits 2 and 3 introduced at the hearing on August 20th clearly indicated that Mrs. Reed together with Mrs. Myrtle Weaver Higgins had created a rather adverse situation with respect to the appointment of the administrator. This Court can neither approve or condone the method employed by Mrs. Reed in writing the two letters referred to- and it is a finding of the Court that she was assisted in the composition and preparation of these letters by the attorney for the appellants. The Court further finds that the decedent, Gordon L. Weaver, was the administrator of the estate of his father, Albert Weaver, and that he discharged Mr. Postlethwaite as his attorney for said estate some time about 1946, and that the decedent had an intense dislike for Mr. Postlethwaite. John G. Kite represented the decedent as administrator of the estate of his wife at the time of his death.
“7. This Court attempted in a conference with the two attorneys to induce them to act as co-counsel for any administrators appointed but was unable to obtain such an agreement.
a a a a *
“11. At the time of the decedent’s death the decedent was the owner of approximately fifty-three and one-half quarters (53K) of land in Cheyenne County and which apparently is very productive land. Mr. Robertson operates a full section of land which he owns and in addition performs the duties as president of the Security State Bank at Bird City, Kansas. The Court finds that there is a limit to the capacity of one man to perform such duties as would be required by Mr. Robertson if he was appointed as sole administrator.
“12. The appellees, Delmont Price and John Lindsten, who were appointed as co-administrators by this Court were and are familiar with the method of operation of all of such land by the decedent, had assisted the decedent in the management of said land. Edgar Robertson was not familiar with the method of operation of a good portion of the land and knew only what had been told him by some of the appellees.”
# s * * *
“1. This Court concludes as a matter of law that all of the parties who have been appointed as administrators, Edgar Robertson, Delmont Price, and John Lindsten are competent to perform the duties as administrators. However, the Court finds that Edgar Robertson is unsuitable to be appointed as sole administrator for the reason that it would work undue burden upon him to handle this entire estate and perform the other duties which he is required to perform. In addition Mr. Robertson is not familiar with the method of operation oí some of the land of the decedent which is farmed by some of the appellees and other parties.
• “2. It is the conclusion of this Court that in view of the fact that the Court has found Mr. Robertson unsuitable as sole administrator, that under the provisions of K. S. A. 59-705 (3), that it is to the best interest of the estate and all persons interested therein that administration be granted to Edgar Robertson, Delmont Price, and John Lindsten as co-administrators of the estate of Gordon L. Weaver, deceased.” (Emphasis added.)
Our statute governing the appointment of administrators is K. S. A. 59-705, which reads:
“Administration of the estate of a person dying intestate shall be granted to one or more of the persons hereinafter mentioned, suitable and competent to discharge the trust, and in the following order:
“(1) The surviving spouse or next of kin, or both, as the court may determine, or some person or persons selected by them or any of them.
“(2) If all such persons are incompetent or unsuitable, or do not accept, administration may be granted to one or more of the creditors, or to a nominee or nominees thereof.
“(3) Whenever the court determines that it is for the best interests of the estate and all persons interested therein, administration may be granted to any other person, whether interested in the estate or not.”
The above statute pertaining to* the granting of administration of an estate establishes three classifications in the order in which they shall be considered for the appointment of a suitable and competent person or persons to discharge the trust. The court has no power or authority to appoint any person falling under a lower classification, unless it first finds that the person or persons designated by a prior classification are nonexistent, incompetent or unsuitable to discharge the trust or do not accept the trust. (In re Estate of Paronto, 163 Kan. 85, 180 P. 2d 302; and In re Estate of West, 165 Kan. 483, 195 P. 2d 616.)
Statutes regulating the order in which administration may be granted are ordinarily construed as mandatory and as leaving the courts no discretion in the matter, save where there are two or more persons equally entitled under the statute, or where a question arises as to the fitness or qualifications of the person or persons primarily entitled to the appointment. (33 C. J. S. Executors and Administrators, § 34, p. 924.)
Values of substance inhere in the right to letters of administration and those upon whom the right has been conferred by statute should not be deprived of it, except as the statute has provided. (Williams v. Williams, 24 App. D. C. 214, 217 [1904].)
Here detailed statutory provision has been made for the issuance of letters of administration under 59-705, supra, and an explicit system of priorities as between next of kin and others has been established; hence, if the next of kin in the first classification have submitted a nominee for appointment as administrator, who is not barred under a specific statutory disqualification, a creditor under the second classification or other person not in any preferred classification may not be appointed.
The appellees in their petition for the appointment of an administrator alleged Edgar Robertson to be a “proper and suitable person to whom to grant letters of administration”; their attorney, Mr. Kite, admitted into the record that the appellees conceded Edgar Robertson was a fit and suitable person to serve as administrator in every way; and none of the appellees filed any written defense to the allegations of the next of kin in their petition that “Edgar Robertson is a proper and suitable person to whom to grant letters of administration.”
Furthermore, the next of kin who were the owners of this estate indicated their unanimous desire to have Edgar Robertson appointed as the administrator and objected to the appointment of anyone else.
There is no dispute that Edgar Robertson is a competent person to serve as administrator of this estate. The controversy concerns his suitability to serve as sole administrator. The trial court did not find him unsuitable. It merely found him unsuitable to serve as the sole administrator. The trial court by appointing Edgar Robertson as one of the administrators clearly found him suitable to serve as administrator.
By its use of the word “suitable” the legislature intended to and did vest the probate courts, and on appeal the district courts, with discretionary power in determining whether persons were suitable to act as administrators. Such discretionary power when exercised must be upheld unless abused. (In re Estate of West, supra, p. 486.)
As in the case of In re Estate of West, supra, it was the duty of the district court in this case to determine whether there were any persons seeking appointment or properly selected who were suitable and competent for the position under the first classification in the statute, and, if so, appoint the person or persons who were eligible for the appointment pursuant to its terms.
To sustain the trial court’s finding that Edgar Robertson was unsuitable to serve as administrator in this estate and thereby warrant the exercise of its power of discretion, it would be necessary that such finding be based upon evidence in the record. The finding cannot be made by the trial court without any relevant evidence whatever. (In re Estate of Paronto, supra.)
An appeal to the district court from the probate court appointing the administrators in this estate (see K. S. A. 1973 Supp. 59-2401 [2]) is heard de novo in the district court under K. S. A. 1973 Supp. 59-2408. Thus, it is only the evidence before the district court that is material on appeal to this court.
The thrust of appellants’ points on appeal is that the trial court erred in concluding from the evidence that Robertson was unsuitable under 59-705, supra. The appellants allege the appellees have admitted Robertson’s suitability on the record; there was no evidence the administration of the estate would overburden the personal capacities of Robertson; Robertson’s lack of knowledge concerning the particularities of the decedent’s farming operation is not a relevant consideration; and the trial court’s conclusions were merely a maneuver to force the estate to employ multiple attorneys.
On the other hand, the appellees urge the trial court’s conclusions are supported by substantial evidence and 59-705, supra, was properly applied. The appellees contend they consistently main tained no one individual, who does not have full time to devote to serving as administrator of this large an estate, would be suitable to serve alone, and the trial court was within its discretion in finding Robertson unsuitable because of his other responsibilities and lack of knowledge concerning decedent’s farming operations.
We believe the trial court correctly perceived “the primary fight in this case is between who is going to be the attorney for the estate.” Mrs. Reed and Mrs. Higgins apparently knew and worked with Robertson and Postlethwaite previously and wanted them to handle the estate on behalf of the next of kin. Through Mrs. Reed’s efforts the next of kin, most of whom did not know the decedent or any of the nominees for administrator, were contacted and informed of the proceedings and also the feelings of the next of kin who knew the people involved concerning the appointment of an administrator and attorney: Relying on the local relatives’ judgment all of the next of kin returned the forms designating Robertson to be the administrator. This is not a case involving antagonistic factions among the next of kin, for there was no disagreement among them as to who should be the sole administrator.
The in-laws were motivated, at least in part, to oppose the appointment of Robertson because he would select Postlethwaite for his attorney, and the decedent had disliked Postlethwaite and discharged him in his wife’s estate.
Under K. S. A. 59-705 the next of kin, or “any of them”, had the right to select Robertson as the sole administrator of their estate, if he was competent and suitable. The trial court found Robertson unsuitable to serve as sole administrator for two reasons: (1) It would be an undue burden upon him to handle the entire estate because of his other responsibilities, and (2) he was not familiar with the operation of some of decedent’s land which is farmed by some of the appellees and others.
However, the trial court’s statements at the conclusion of the evidence that “Nobody seems to be critical of Mr. Robertson” and “when I came in this morning I tried to get them [the attorneys] to agree to serve jointly either with Mr. Robertson or with all these other men, too”, are inconsistent with his conclusions and indicate a belief that Robertson was suitable to serve as the administrator.
There is no evidence to support the trial court’s conclusion that administering the estate would be an “undue burden” upon Robertson. It is undisputed Robertson is president of a bank, farms some land, and is a trustee in a two million dollar trust, but there is nothing to show these activities would prevent him from ably administering the estate. While this is a large estate, there is no evidence it is too large for Robertson to properly administer. Robertson s uncontradicted testimony was that he could administer the estate. If anything, his access to the bank’s facilities and personnel together with his attorney will assist him in administering the estate rather than hinder it.
The other basis for the court’s finding that Robertson was unsuitable is that he was not familiar with the operation of some of Weaver’s land. The evidence was, and Robertson was aware, that all the land was farmed on a landlord-tenant basis with written leases, except some land on an oral partnership-custom-farming basis by the Lindstens and an oral lease with one of the tenants. The record discloses the tenants are all good farmers and work independently, so that it would not be necessary for Robertson to closely supervise the fanning operations. Also, Robertson is familiar with the local farming methods since he farms some land of his own. Robertson’s lack of specific knowledge of the decedent’s farming operations is irrelevant. One of the purposes of administration is to inventory the assets and determine these facts. It would be an unusual situation for any one person to know all the facets of a decedent’s business interests.
The appellees make repeated reference to the fact that they had the closest relationship with the decedent and worked with him daily, while very few of the appellants had any contact with him at all. This is irrelevant to a determination of who should be granted letters of administration under K. S. A 59-705. The appellants are the undisputed next of kin and therefore have priority in selecting an administrator of their choice no matter how the decedent or creditors felt about the nominee or his attorney. In fact, the apparent antagonistic and adverse interest of Delmont Price and John Lindsten as farm tenants of the decedent furnished another ample reason why the trial court should have declined to honor their petition that they be appointed. (In re Estate of West, supra; and In re Estate of Anderson, 168 Kan. 299, 212 P. 2d 375.)
It is understandable why the next of kin owners of this estate would prefer to have a highly qualified banker to serve as the fiduciary to deal with the farm tenants of the land during the course of administration of the estate, rather than to have some of the tenants dealing with themselves.
The trial court had before it the nominee of the next of kin whom they designated to be appointed administrator of the estate. The record discloses their nominee was competent and suitable for the position, and falling within the first classification of 59-705, supra, their nominee was eligible for the appointment. Accordingly, the trial court’s refusal to appoint Edgar Robertson as the sole administrator of the estate of Gordon Weaver, deceased, was error.
The trial judge improperly injected himself into this case as evidenced by his own remarks in the record that he was ready to appoint Edgar Robertson sole administrator of this estate, provided Mr. Kite and Mr. Postlethwaite would agree that both represent the estate as its attorneys. Mr. Kite and Mr. Postlethwaite had no authority whatever to make such an agreement and bind the fiduciary to it. Under Kansas law it is the sole province and responsibility of the fiduciary to choose and employ his attorney. (In re Estate of Bertrand, 188 Kan. 531, 542, 363 P. 2d 412; and In re Estate of Eyth, 157 Kan. 268, 139 P. 2d 378.)
The trial judge also improperly stated:
"... I hoped I could get them [Kite and Postlethwaite] to go in and work together on the estate because I think that probably this is a large enough estate they probably could merit the allowance of fees for two attorneys. ...”
The district court had no authority to dictate who should be the attorney for the fiduciary in this matter, or to force the employment of multiple attorneys upon the next of kin who are the owners of the property in this estate.
The judgment of the lower court is reversed with directions to appoint Edgar Robertson the sole administrator of the estate.
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The opinion of the court was delivered by
Kaul, J.:
The defendants-appellants, Falcon Coach Inc., Ed McDonald and Larry Jeffers, appeal from a default judgment rendered against them under the provisions of K. S. A. 60-237 (b) (2) (III), [now K. S. A. 1973 Supp. 60-237 (b) (2) (C).]. Judgment was not rendered against defendant Vem Altes.
The tortuous course of this litigation began on June 25, 1971, when plaintiff-appellee, Jim Lorson, filed his petition praying for damages resulting from circumstances which plaintiff claims amounted to a breach by defendants of an alleged employment contract.
The petition was drawn in the form of a recitation of facts. Plaintiff alleged that he was contacted by a representative of Falcon and, on June 14, 1971, went to Great Bend for a job interview with company people. On arrival in Great Bend, Lorson discussed employment with defendants Jeffers and Altes, employees of Falcon. Following that discussion, Lorson was given an airline ticket to Denver to fly there for an interview with Ed McDonald, chairman of the board of directors of the Falcon Company. Plaintiff alleges that he flew to Denver on June 15, 1971, and that the interview with McDonald resulted in a job offer of $250 per week, with the possibility of a stock option as an added benefit. Plaintiff further alleged that McDonald told him to look for a house in Great Bend. Plaintiff returned to Great Bend on June 16, 1971, informed Altes that he had been hired and was given a Falcon check for $154 by Altes to cover his travel expenses. On the same day plaintiff found and rented a house in Great Bend and then returned to his home in Denison, Iowa, where he made arrangements with Allied Van Lines to move his furniture to Great Bend.
When plaintiff returned to Great Bend on June 18, 1971, he was first informed by Mrs. Jeffers and then by defendant McDonald that he did not have a job with Falcon and that the company would not pay for the moving of his household goods. Plaintiff farther alleged that the van transporting his goods stopped in Abilene, Kansas where some furniture owned by plaintiffs mother was to be added to the load and that Falcon contacted the van driver in Abilene informing him Falcon would not pay the moving expenses, but plaintiff alleges upon certain representations being made to the movers the moving van proceeded and arrived in Great Bend on June 19, 1971. Falcon representatives refused to pay any part of the moving costs and as a result the movers refused to unload plaintiffs furniture in Great Bend, but took it on to Hutchinson where it was stored with the City Transfer Moving and Storage Company.
Plaintiff prayed for damages in the amount of $930, representing moving costs and in addition storage costs and other costs incidental to keeping his family, consisting of eight children, in Great Bend. Plaintiff further prayed for the recovery of $250 per week pursuant to the contract allegedly entered into with McDonald and for $150,000.00 punitive damages for pain, suffering, humiliation and detriment suffered by plaintiff and his family.
Plaintiffs petition was met by a request for admissions filed by defendant Falcon on July 26, 1971. At this juncture defendants McDonald, Altes and Falcon were represented by Larry Kopke of Great Bend and defendant Jeffers was represented by present counsel.
On September 8, 1971, Falcon filed a motion for partial summary judgment which was heard on September 30 and on November 17, 1971, the trial court filed its memorandum decision. The trial court sustained Falcon’s motion as to punitive damages, but overruled it in other respects finding that a cause of action was stated in plaintiff’s petition. The trial court’s ruling that a cause of action was stated is challenged by defendants in this appeal.
On January 21, 1972, plaintiff filed an amended petition, City Transfer Moving and Storage Company was added as a party defendant and plaintiffs claim for wages was amended to a demand for the sum of $250 per week in the nature of salary from and after June 21, 1971, until the conclusion of the litigation.
On May 30, 1972, defendants’ present counsel entered an appearance as counsel for defendants Falcon, McDonald and Altes replacing previous counsel Kopke.
On June 17,1972, defendants filed an answer to plaintiffs amended petition alleging inter alia that plaintiff had practiced fraud upon defendants and had misrepresented his past employment record. Defendants also filed a counterclaim alleging plaintiff had instituted the action for the purpose of harassing defendants with the expectation of receiving a nuisance settlement and that plaintiff had engaged in similar tactics with other employers. Defendants prayed for judgment for $10,000.00 damages on their counterclaim.
On June 29, 1972, plaintiff filed a motion to reinstate his claim for punitive damages and in support thereon alleged that since the date of the court’s decision on the motion for summary judgment, September 30, 1971, plaintiff had repeatedly attempted to have the case set for trial, but due to the delay and dilatory actions of defendants, and subsequent change of attorneys, plaintiff had been repeatedly denied an opportunity to present his case to the court. Plaintiff further alleged that because of the delay he had been substantially damaged and that as a result he should be allowed to reinstate his prayer for punitive damages.
On August 30, 1972, plaintiff served defendants with interrogatories concerning allegations made in defendants’ counterclaim. It is defendants’ failure to serve proper and timely answers to these interrogatories which became the basis for plaintiff’s motion upon which the default judgment appealed from was entered.
On September 18, 1972, defendants filed a motion seeking a twenty day extension of time in which to answer plaintiff s interrogatories. On October 19, 1972, the trial court heard plaintiff’s motion to reinstate his claim for punitive damages and defendants’ motion for an additional twenty days in which to answer plaintiff’s interrogatories. The court sustained plaintiffs motion to reinstate his claim for punitive damages and concerning defendants’ motion for extension of time in which to answer interrogatories ruled as follows:
“The Court thereupon takes up the Motion for Additional Time to Answer Interrogatories and having heard the evidence and being fully advised in the premises finds that the Defendants should have twenty (20) days from this date in which to answer the interrogatories forwarded to said Defendants on August 30, 1972.”
The twenty day extension granted on October 19 expired on November 8, 1972. On December 1, 1972, plaintiff filed a motion for default judgment pursuant to 60-237 (b) (2) (III). In his motion plaintiff recited the time intervals following August 30, 1972, through November 8, 1972, and alleged that defendants had refused to answer the interrogatories. The motion was noticed for hearing on December 6, 1972, but as plaintiff says in his brief:
“. . . [C]ounsel, Turner, appeared not for any of the Defendants and the Court, feeling the matter worthy of hearing, continued the same and notice was again sent by Plaintiff to Defendants, setting this matter for January 4, 1973.”
The matter came on for hearing on January 4, 1973. Plaintiff’s counsel recited the chronology of events following August 30, 1972, and at this point the following colloquy took place between the court and defendants’ counsel:
“Mr. Dahlberg: Well, I have the interrogatories here with me. Counsel for the plaintiff knows the circumstances and what the delay was. We had lost the interrogatories or our client in Denver had and we have some distance relative to communications, and he lost them or misplaced them and this is why we had to secure an additional set of interrogatories.
"The Court: Well, the thing that bothers me, for a simple case that this should be it has just been dragging on and on and on and this plaintiff, we need to give him his day in Court or give him judgment or dispose of the matter. It has been on file for a year and a half and there is no reason for the thing to keep dragging on and on like this.
“Mr. Dahlberg: Well, I wont deny that we were neglectful.
“The Court: You have the interrogatories answered and so on?
“Mr. Dahlberg: Yes, they have been answered and signed. I won’t deny that we have been neglectful in the sense that our client had misplaced these and this was contributing to the delay but I don’t think it is sufficient that it warrants the severe imposition of granting summary judgment.”
The hearing concluded with the trial court’s announcement that it was taking the matter under advisement, but that in the meantime defendants’ counsel should get the interrogatories on file.
On January 8, 1973, the trial court announced its decision in a memorandum opinion which reads in part as follows:
“During the course of the argument, the Attorney for Falcon Coach Company, Inc., Ed McDonald and Vern Altes advised the Court that they would on that date file the answers to the interrogatories in question and that die Court thereafter could set a time limit for other discovery and set the matter down for Pre-Trial and otherwise proceed with the matter.
“As of January the 8th the only answers to Plaintiff’s interrogatories that have been filed with the court, are the answers of the Defendant Vern Altes, as to this Defendant, the Plaintiff’s motion for judgment under the provisions of K. S. A. 60-237 (b) (2) (iii) is overruled.
“As to' the Defendant, Falcon Coach Company, Inc., and the Defendant Ed McDonald, this Court is hereby sustaining the Plaintiff’s motion for judgment under the foregoing statutory provisions for the following reasons:
“(a) The record herein shows that on August 30, 1972, the Plaintiff duly served the interrogatories above mentioned on the Defendants; that the Defendants failed to answer the interrogatories within the prescribed time and the Court, on September 14, 1972, granted an additional twenty (20) days to file answers to interrogatories, these twenty (20) days to run from, October 19, 1972. There has still been no compliance with this Court’s order.
“This Court believes that it is charged with the just and speedy determination of litigation; this Plaintiff, as provided under K. S. A. 60-101. This Plaintiff has had this litigation in process since June 25, 1971. The matter started with different counsel for the Defendants involved herein, however, the present counsel have been in this litigation for some period of time and the Court believes that any delay cannot be predicated on their lack of familiarity with the file or its contents.”
Without having heard any evidence on damages, other than plaintiffs references to moving costs in his answers to defendants’ interrogatories, the trial court then proceeded to enter judgment substantially as prayed for in plaintiffs amended petition — $930 for moving costs; $2000 for storage; $250 per week until the matter is satisfied; and $5000 punitive damages. Plaintiff did not request the court to hear additional evidence on damages.
On January 15, 1973, defendants filed a motion to set aside the judgment alleging numerous grounds. The motion was heard on February 7, 1973, at which time, the record reflects, counsel for defendants made an extensive argument including a statement of explanation of their delay. On March 28, 1973, the trial court announced its decision generally affirming its previous judgment with some modifications as follows:
“. . . The Court in re-considering this matter finds that its Memorandum of Decision of January 8, 1973, should be modified as follows:
“a. The Court finds that die punitive damages allowed should not have been aEowed in considering the matter at this time, and therefore the Court is striking these from the judgment granted.
“b. The Court finds that the actual damages awarded to Plaintiff should be amended as foEows:
“1) That Plaintiff be awarded the sum of Twelve Thousand DoEars ($12,-000.00) as wages due, covering the period from June 21, 1971, until May 21, 1972, when the Court finds from the discovery deposition of Plaintiff that he became employed; that the judgment for moving and storage granted to Plaintiff in the Court’s previous Memorandum of Decision of January 8, 1973, be and the same is hereby reaffirmed.”
Thereafter this appeal was perfected.
Defendants specify three points of error on appeal. The first of which is that the trial court lacked authority to grant the default judgment. Defendants’ argument on this point is technical in nature; the gist is that 60-237 (b) (2) (III) authorizes the sanction of default judgment only after the court has entered an order under 60-237 (a).
K. S. A. 60-237 entitled “Refusal to make discovery” is substantially the same as Federal rule No. 37 (Vol. 8 Wright & Miller, Federal Practice and Procedure, Civil). It provides generally for sanctions against parties or persons unjustifiably resisting discovery. Subsection (a) authorizes an aggrieved party to make application to the court for an order compelling a party to respond to interrogatories or questions propounded in a deposition. Subsections (&), (c) and (d) provide sanctions which may be applied under the conditions therein set out for the enforcement of the rules of discovery enumerated in subsection (a).
Defendants say that in the instant case no application or motion was made under 60-237 (a) and, thus, plaintiff’s motion to invoke sanctions under 60-237 (b) (2) (III) was premature. While the record reflects that plaintiff did not make application to this court under 60-237 (a) for an order compelling an answer by defendants, the court did, in fact, make an order on defendants’ motion for extension on October 30, 1972. Defendants cannot complain that they did not have notice of the court’s order directing answers within twenty days since defendants filed the motion for extension themselves. Subsection (d) of 60-237 deals specifically with wilfully failing to answer interrogatories and authorizes the court, on motion and notice, to inter alia enter a judgment by default against the defaulting party. We believe the court’s findings enumerated above are tantamount to a finding of wilful failure on the part of defendants. At this point, we pause to note that the word “wilfully” has been deleted from 60-237 (d) in the extensive amendments to 60-237 which became effective January 1, 1973. While it appears that plaintiff’s motion could have been lodged under 60-237 (d), the motion filed, specifically fingered 60-237 (b) (2) (III) and we base our decision on that subsection. Subsection (b) of 60-237 sets out two categories of consequences for a party’s failure to comply with an order under subsection (a), they are (b) (1) “contempt” and (b) (2) “other consequences.” Subsection (b) (2) provides inter alia that the failure of a party to obey an order under subsection (a) requiring him “to answer” designated questions subjects him to any of the sanctions enumerated in subsections (b) (2) (I), (II), (III) and (IV). Subsection (b) (2) (III) reads:
“An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”
In the instant case tihe order of October 30, 1971, falls within the ambit of subsection (a), thus, the trial court, after proper notice and hearing, was authorized to impose sanctions under (b) (2) (HI) including the entering of a default judgment.
We turn next to defendants’ second contention that the trial court acted in an arbitrary manner and abused its discretion in entering the instant judgment. Defendants submit no authorities in their brief in support of their contention. They concede this case has taken too much time, but attempt to fix the cause of the delay on the fault of plaintiff or to balance off the claimed derelictions of plaintiff against their own neglect. Defendants say the court’s decision is both insupportable on the law and inequitable on the facts of the case.
In its memorandum decision the trial court in support of its judgment cites two eases in which a default judgment had been entered by the trial court as a sanction-under 60-237 (b) (2) (III). The two cases are Ronnau v. Caravan International Corporation, 205 Kan. 154, 468 P. 2d 118; and Williams v. Consolidated Investors, Inc., 205 Kan. 728, 472 P. 2d 248, neither is directly in point with the issues presented here. In Ronnau the default judgment was not attacked. The issues on appeal involved garnishment proceedings instituted to collect on the judgment. In Williams the judgment in question was entered for failure of defendant to produce documents for inspection. On appeal this court reversed on the grounds that the documents in question were in the possession of a third party and defendant did not have a legal right to enforce a demand for possession and control so as to comply with a production order.
While the precise question in the Williams case concerned the failure to comply with a production order rather than failure to respond to interrogatories what was said therein concerning the sanction of a default judgment under 60-237 (b) (2) is pertinent to the issue here.
In Williams we pointed out that 60-237 is identical to Rule No. 37 of the Federal Rules of Civil Procedure and examined a number of federal decisions dealing with the rule. With respect to penalties by 60-237 (b) (2) for failure to comply with a production order, we had this to say:
“The penalties permitted by 60-237 (b) (2) are not to be imposed for the failure to comply with a production order in the absence of an ability to produce, where a party’s failure to produce is shown to be due to inability fostered neither by his own conduct nor by the attendant circumstances of the case. (Read v. Ulmer, 308 F. 2d 915.) While 60-237 (b) (2) applies to all failures to comply, either willful or not, the presence or lack of good faith in the parties is relevant to the orders which should be given and the severity of the sanctions imposed. (B. F. Goodrich Tire Company v. Lyster, 328 F. 2d 411, 415.) The sanction of judgment by default for failure to comply with a production order is the most severe sanction which the court may apply, and its use must be tempered by the careful exercise of judicial discretion to assure that its impo sition is merited. However, where a party has acted in willful and deliberate disregard of reasonable and necessary orders of the court and the efficient administration of justice, the application of a stringent sanction is fully justified and should not be disturbed. (Trans World Airlines, Inc. v. Hughes, 332 F. 2d 602.). . . . (p. 733.)
Numerous federal cases dealing with discretion of the court in imposing sanctions under the rule are collected in Vol. 8 Wright & Miller, Federal Practice and Procedure, Civil, § 2284, pp. 764-772. In general, decisions indicate that discretion though broad is not limitless and that the imposition of sanctions is always subject to appellate review and reversal if abuse of discretion is found. In testing the severity of the sanction imposed in the framework of abuse of discretion the good faith of a party is considered in many decisions. In the Williams case we observed:
“The record amply demonstrates a good faith attempt by the defendants sufficient to excuse them from the sanction of a default judgment. . . .” (p. 734.) (Emphasis supplied.)
Returning to the instant case, we examine defendants’ conduct in the light of a good faith test. The trial court noted that defendant Altes’ answers to interrogatories were notarized on September 25, 1972, yet on October 19, 1972, counsel for defendants requested additional time to answer interrogatories for all defendants. Counsel for defendants in a plea for fairness claim that the final delay in January was occasioned only by the excusable neglect of the notary to sign the answers. This argument might be acceptable if the delay had occurred in the immediate vicinity of the twenty day extension. This is not the case. The twenty day extension expired on November 8, 1972. The failure to obtain the notary’s signature occurred over a month and a half later in early January of 1973. Absolutely, no excuse is offered for the delay between November 20 and January 4. Based on defendants’ prior request for extension of time and the absence of excuse for delay beyond the extension date, it appears to us the trial court had ample reason to conclude the delay was wilful and that defendants’ conduct showed a lack of good faith.
In the instant case defendants were offered a full hearing on January 4, 1973, with full opportunity to demonstrate good faith or show acceptable excuses for the delay. On February 7, 1973, on •the motion to set aside judgment the court again heard whatever defendants had to offer. Under such circumstances the court cannot be said to have acted arbitrarily. In affirming a default judgment rendered for failure to answer interrogatories in Weiss Noodle Company v. Aprile, (United States Court of Appeals, [6th Cir. 1959]), 272 F. 2d 923, the appellate court emphasized the fact that the trial court had held a hearing and had an opportunity to hear excuses.
While the entry of judgment is a drastic remedy, we cannot say, under the facts and circumstances shown by the record here, that the trial court abused its discretion.
For their third point on appeal defendants attack the trial court’s ruling on their motion for partial summary judgment entered on November 17, 1971. Defendants contend the judgment is erroneous as to damages for loss of wages since breach of an oral contract of employment which is for an indefinite period of time does not state a cause of action. The point is well taken. In May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 370 P. 2d 390, we held:
“In tiie absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he had been discharged.” (Syl. ¶ 1.)
Our holding in May echoed a previous holding in Swart v. Huston, 154 Kan. 182, 117 P. 2d 576. Our decisions in this regard follow the general rule stated in 53 Am. Jur. 2d, Master and Servant, § 43:
“When the employment is not for a definite term and there is no contractual or statutory restriction upon the right of discharge, an employer may lawfully discharge an employee whenever and for whatever cause he chooses, without incurring liability. . . .” (pp. 117, 118.)
In considering a motion for summary judgment under K. S. A. 60-256 or a motion to dismiss under K. S. A. 1973 Supp. 60-212 (c) pleadings will be given a liberal construction in favor of the party against whom the motion is directed. (Robertson v. McCune, 205 Kan. 696, 472 P. 2d 215; and Price, Administrator v. Holmes, 198 Kan. 100, 422 P. 2d 976.) An examination of plaintiff’s petition in the light of the rule quoted reveals no allegations of an express contract nor of facts from which a contract might be implied that could be construed as a contract for a definite period of employment. Therefore, the judgment as to damages for loss of wages must be set aside. However, applying the same rule, we believe the allegations of plaintiff’s petition are sufficient to state a cause of action for damages for the breach of a quasi contract based upon plaintiffs reliance to his detriment on defendants’ promise of employ ment and, thus, incurring moving expenses and storage costs. (Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, 507 P. 2d 268.) For the reasons stated the judgment is affirmed as to storage and moving costs.
Accordingly the judgment is affirmed as modified.
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The opinion of the court was delivered by
Kaul, J.:
Defendant appeals from convictions by a jury of burglary and theft. (K. S. A. 1973 Supp. 21-3715 and 21-3701.) The issue on appeal concerns the search of defendant’s vehicle and subsequent seizure of a high-speed sander or grinder and a heavy duty three-quarter inch drill.
On the evening of June 14, 1972, the sheriff’s office of Kearny County was notified by two young men that they had observed suspicious conduct on the part of a driver of a white station wagon on a rural road near a farmhouse. Within a few minutes after receipt of such report the defendant in his station wagon was stopped by officer McCue of the sheriff’s force. McCue questioned defendant and checked the station wagon. He noticed several tools, including the drill and grinder, which were in plain view in the rear of the vehicle. McCue also questioned the owner of a nearby farmhouse and was informed that nothing was missing. Defendant was allowed to proceed despite the fact that he was unable to produce his driver’s license.
The following morning, Tom Wright a farmer, residing in the vicinity, reported a burglary of his barn and that some tools were missing, including a high-speed grinder and a heavy duty drill. A warrant was issued and a bulletin broadcast by radio. Defendant was arrested by the sheriff of Haskell County later the same morning. Officer McCue and Police Chief Cox of Laldn proceeded to Sublette where they found defendant under arrest and his vehicle detained. McCue testified in a hearing on a motion to suppress and at the trial that defendant’s station wagon still contained the tools in question when defendant was taken into custody at Sublette; and that the grinder and drill, which were in plain view through the window of the station wagon, were the same grinder and drill that he had seen the previous evening. McCue further testified that even though the grinder and drill met the description of the tools, earlier described as missing from the Wright barn, he was also interested in further searching the vehicle for tools taken in an unrelated burglary. He also testified that he knew defendant could not read. McCue read a Miranda warning to defendant and inquired if defendant would sign a consent to search the vehicle. The defendant agreed and did sign a consent form. McCue testified that he informed defendant he was searching for a red tool bar, which was not found in the search.
Prior to trial a motion to suppress was heard and overruled. During the trial when the drill and grinder were offered in evidence, defendant again objected and was overruled.
On appeal defendant contends that the search and seizure in question was invalid since it was not incidential to an arrest, but occurred after his arrest under circumstances where a search warrant could have been easily obtained. Defendant further contends that his consent to search was not knowingly and voluntarily made because he was unable to read.
The record clearly reflects that there was probable cause for the arrest of defendant since officer McCue saw the grinder and drill when he first stopped defendant and then learned, the next morning, that the tools fitted the description of the missing items reported by Mr. Wright. The grinder and drill were still in defendant’s vehicle in plain view when officer McCue arrived in Sublette; neither a warrant nor consent was necessary for their seizure under such circumstances. We understand from McCue’s testimony that he desired consent to further search the vehicle only to look for tools taken in an unrelated theft.
The trial court’s finding that the seizure was proper in this case may be sustained on two grounds. First, the tools in question were in plain view. On numerous occasions this court has approved a seizure made without a search warrant when known contraband is viewed by an officer through a car window. (State v. Frizzell, 207 Kan. 393, 485 P. 2d 160; State v. Brown, 198 Kan. 473, 426 P. 2d 129; and State v. Hunt, 198 Kan. 222, 424 P. 2d 571.) Second, a search may be authorized where an officer has probable or reasonable cause, as in the instant case, to believe a vehicle contains contraband or items which offend against the law. (State v. Robinson, 203 Kan. 304, 454 P. 2d 527; and State v. Blood, 190 Kan. 812, 378 P. 2d 548.)
Noting that confusion has arisen between the right to search incident to an arrest and the right to search an automobile on probable cause, this court in State v. McCollum, 211 Kan. 631, 507 P. 2d 196, held that the same knowledge providing probable cause for an arrest may also furnish probable cause for search, citing Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975. See, also, State v. Undorf, 210 Kan. 1, 499 P. 2d 1105.
From what has been said it is apparent the propriety of the search and seizure in this case does not depend upon the validity of defendent’s consent. However, we do not believe that the mere fact defendant was unable to read is sufficient to abrogate the validity of his consent. Officer McCue testified that he read the Miranda warning to defendant and explained consent to defendant before requesting defendant’s signature. Under such circumstances we are unable to see how defendant’s inability to read or the fact that the search, for which the consent was secured, was for contraband unrelated to the instant crime would in anywise impinge upon the validity of the consent given.
Finding no error the judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This is an action by an insured against his insurer on an automobile policy to recover losses stemming from an automobile collision and for additional damages alleged to have resulted from the investigation and handling of his claim by adjusters employed by the insurer.
The case was tried to a jury — fire primary issue being whether the alleged damages and injuries sustained were a result of the insured’s own intentional conduct. Damages for injury resulting from the intentional conduct of the insured is specifically excluded from coverage under the policy of insurance in question. The jury found adversely to insured and this appeal followed.
For convenience the appellant will be referred to as Hass, the plaintiff or the insured, and appellee as the defendant or Preferred Risk.
Facts necessary to our discussion are summarized as follows;
In the late afternoon of May 23, 1971, Hass was driving his station wagon on a street approaching the intersection of 29th and North Broadway in Wichita. Apparently, Hass had done something which antagonized another automobile operator, Danny L. Johnson. As Hass approached the intersection the traffic light turned red and he stopped his station wagon. The other driver, Danny L. Johnson, stopped immediately behind the Hass automobile. The events which followed are described by Johnson in his testimony which is narrated as follows:
“At the intersection of 29th and Broadway, I was behind the car being driven by Mr. Hass. The light was red. I got out of my car to go up and ask him what his problem was, I know I had never seen him before, and I didn’t care to get involved with another accident, so I walked up to the car and started to ask him what he was up to. I don’t even think I got a word out and he swung a ball bat at me, and I reached in and hit him, took the ball bat away and threw it over the railroad tracks. I just turned around and started walking back to my car, and the next thing I know he made a u-turn and I had just turned around in time to see him and jumped up backwards onto my hood and he hit my car, veered off and I saw him go over to the parking lot.”
Hass testified that as he was sitting in his station wagon, someone approached and hit him; and that he remembered nothing after the blow until he awoke in the coronary care unit of St. Joseph Hospital.
Other eyewitnesses testified that they saw Johnson at the Hass station wagon and that when he turned away he had a child’s baseball bat in his hand. Several witnesses testified that they saw Johnson return toward his automobile, Hass’s U-turn and the subsequent collision substantially as those events were described by Johnson. At some point during the series of events, Hass suffered a disabling heart seizure. There was some discrepancy in the medical testimony concerning the effect of the heart seizure. Dr. Louis Morgan called on behalf of Hass testified: “I think Mr. Nelcson Hass had the capacity to form an intent under the physical circumstances which were described to me.”; but he did not think Hass “was conscious of everything that was going on.” Dr. Charles Williams was called by defendant. He testified that in his opinion Hass was physically and mentally capable of deliberately driving his car forward, making a U-turn and driving his car into the Johnson car.
After being notified of the incident a local officer of defendant Preferred Risk employed Francis Schneweis of Chesapeake Adjusters, Inc., to investigate the property damaged. Schneweis was unable to talk to Hass, but did interview his wife and uncle and contacted Hass’s attorney, Gary Hanna, whose principal concern was getting Hass released from criminal liability. According to Schneweis he was taken off the case when it appeared there would be a claim for personal injuries since his company did not adjust bodily injury claims.
Bruce Wilson, of Kansas Claims Service of Wichita, Inc., took over the adjustment investigation from Schneweis on June 2, 1971. Wilson obtained statements from the eyewitnesses and Hass’s physician, Dr. Morgan. He also contacted Hanna, Hass’s attorney.
After the adjustment investigation was completed, Preferred Risk determined the incident was not covered by the policy and so informed Hass. Thereafter this litigation was commenced.
In his petition plaintiff alleged coverage under the policy, negligence on the part of Preferred Risk in its investigation of the claim and further alleged a conflict of interest on the part of Preferred Risk. Plaintiff sought damages and attorney fees on each theory. Following the response of plaintiff to defendant’s request for admissions a pretrial conference was held in which the issues were defined.
In this posture the case came on for trial to a jury. At the close of plaintiff’s evidence, defendant moved for a special summary judgment or directed verdict. During the course of the argument on the motion, plaintiff moved to amend his petition to include a claim for $25,000.00 punitive damages. The trial court sustained defendant’s motion as to the second and third causes of action; respectively, negligence and conflict of interest. Plaintiff’s motion to amend by adding a claim for punitive damages was overruled. Thereafter, defendant submitted its evidence and the case was submitted to the jury on plaintiff’s first cause of action for breach of contract which involved the primary issue whether plaintiff’s loss was oaused by his own intentional act. The jury returned a verdict for defendant; plaintiff’s motion for a new trial was overruled; and this appeal followed:
Plaintiff raises seven points of error on appeal which we have carefully examined. However, in view of our holding we have concluded that consideration, individually, of each point is unnecessary.
We will first consider plaintiff’s contention that the trial court erred in overruling his motion to amend his petition to include punitive damages. This court has repeatedly held that a trial court has broad discretionary powers regarding the amendment of pleadings and that the allowance or denial of the same will not constitute grounds for reversal unless it affirmatively appears that the substantial rights of the adverse party were affected and the ruling constituted a clear abuse of discretion. (Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 484 P. 2d 38; Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 437 P. 2d 219; and Hoover Equipment Co. v. Smith, 198 Kan. 127, 422 P. 2d 914.) In the instant case the trial court’s refusal to grant the motion to amend was within its sound discretion. Moreover, it appears the granting of the motion would not have been justified in any event since Hass’s only remaining cause of action at the time of the ruling was for breach of a contract of insurance. In Moffet v. Kansas City Fire & Marine Ins. Co., 173 Kan. 52, 244 P. 2d 228, this court considered the question whether punitive damages could properly follow the breach of an insurance contract, and in this connection we stated:
". . . Mere refusal to pay insurance cannot constitute wanton or malicious conduct when, as here, an actual controversy exists with respect to liability on the policy. If this were not the rule punitive or exemplary damages could be recovered in every action involving a refusal to pay an insurance policy. . . .” (p. 58.)
The remainder of plaintiff’s arguments are dependent, in our opinion, upon our resolution of his contention that the trial court erred in failing to set aside the verdict of the jury and enter judgment for plaintiff.
It is well-settled that on appellate review this court will not weigh the evidence or consider the credibility of witnesses. Where a jury’s verdict is attacked on the ground of insufficiency of tire evidence or as being contrary to the evidence, this court will determine only whether there is any substantial competent evidence to support the verdict. (Lehar v. Rogers, 208 Kan. 831, 494 P. 2d 1124; and Brohan v. Nafziger, 206 Kan. 58, 476 P. 2d 649.) It is also a basic rule of appellate review that in testing evidence, we are required to consider the evidence in the light most favorable to the party who prevailed below, (see Matthews v. Travelers Insurance Co., 212 Kan. 292, 510 P. 2d 1315, and cases cited therein.)
The testimony in the instant case is ample to support the finding of the jury. Each of the parties presented a physician who testified as an expert witness. Both physicians indicated that Hass could have intended to cause the harm which he did in fact cause under the circumstances in question. The record reveals that Hass merely testified that he had a loss of memory.
Since the jury returned a general verdict for the defendant, this court on appellate review must conclude that the jury resolved the issue of intentional conduct as excluded under the terms of the policy against the insured. (Byers v. Hesston Appliance, Inc., 212 Kan. 125, 509 P. 2d 1151; and Phillips v. Hartford Accident & I. Co., 157 Kan. 581, 142 P. 2d 704.)
Plaintiff urges error on the part of the trial court in granting partial summary judgment as to Counts II and III which related to the insurer’s handling of the investigation into Hass’s claim. Concerning this contention we should first point out that plaintiff submitted no evidence as to standards of adjustment procedures which he claims were violated. Defendant’s witness Wilson, on the other hand, testified that he had been an insurance adjuster for thirteen years. He described adjustment procedures and testified that his investigation in this case conformed to good adjusting practice in the community. In support of his argument on this point plaintiff cites the cases of Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P. 2d 403; and Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 470 P. 2d 797.
Spruill Motors deals with the duty of an insurer to defend an action by a third party against its insured where the pleadings allege intentional conduct on the part of the insured which is not within the scope of policy coverage. Although the case recognizes a duty to defend where the insurer knows or has a reasonable opportunity to discover that there is a possibility of coverage, nothing is said in the opinion which would support plaintiff’s position that the insurer in the instant case committed some irregularity or breach of duty in its investigation of the instant claim. Preferred Risk had a duty to investigate the facts since the possibility of coverage existed. The evidence is that on notice it proceeded to fully investigate the facts surrounding the incident and then concluded no coverage existed because the investigation revealed plaintiff’s act to be intentional. As we have previously stated, the jury’s general verdict indicates it found the position of Preferred Risk with regard to the intentional conduct of the insured was justified. In our opinion, this disposes of any claim which Hass may have asserted against his insurer regarding the handling and investigation of his claim.
The Yeager case involved a dispute over title to mineral interests in certain Oklahoma lands and a subsequent action for accounting alleging wrongful interference with a contract relating to efforts to obtain a valid lease of the lands in question. This court did recognize that it is possible for a breach of duty arising out of circumstances surrounding a contractual transaction to constitute an independent tort. The issue in Yeager arose in determining the applicable statute of limitations. The case does not support plaintiff’s position since it involved an entirely different set of facts and circumstances, not analogous in any way to the alleged breach of an insurance contract or any insurrounding duties with which we are concerned here.
Rules followed in this jurisdiction pertaining to damages recoverable in an action based upon breach of contract are set out and discussed in Hess v. Jarboe, 201 Kan. 705, 443 P. 2d 294, wherein we said:
“In actions based upon a breach of a contract the damages recoverable are those which might reasonably have been anticipated by the parties and are limited to pecuniary loss which naturally occurs as a proximate result of the breach, (citing cases.)” (p. 708.)
And further in the opinion an exception to the general rule was recognized:
“An exception to this general rule is recognized when some independent tort or wrong results in additional injury which justifies the assessment of punitive damages by way of punishment of the wrongdoer. In such a case the proof of the independent tort must indicate the presence of malice, fraud or wanton disregard for the rights of others.” (p. 709.)
In the instant case there is no evidence which supports plaintiff’s theory of an independent tort or his claim for punitive damages. To the contrary, defendant’s evidence discloses that all witnesses whose testimony might be relevant were interviewed and in this connection, Wilson testified that the eyewitnesses were unanimous that the insured intentionally ran into claimant’s (Johnson’s) vehicle.
Actually, the jury’s verdict eliminated any question as to the breach of duty on the part of the insurer to the insured.
Other points of error raised by plaintiff are either cumulative or repetitive and, therefore, merit no further discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action on an insurance policy to recover for loss of cattle due to theft. The action was tried to a jury in the district court of Neosho County and resulted in a verdict for the plaintiffs. Appeal has been duly perfected by the defendant.
The underlying issue in the case concerns the construction of the provisions of the insurance policy covering theft, the appellant contending the plaintiffs’ evidence established only a mysterious disappearance of the cattle for which there was no coverage under the policy.
Martin Baugher and H. R. Krokstrom, Sr., are partners, d/b/a Chanute Livestock Auction (plaintiffs-appellees), and operate a livestock auction business east of the city limits of Chanute, Neosho County, Kansas. In connection with the operation of their business livestock is delivered to their place and kept until sold on a subsequent sale date in the regular course of business.
The Hartford Fire Insurance Company, a corporation, (defendant-appellant) on the 17th day of February, 1966, issued a policy of insurance to the appellees which was designated: “Livestock Auction Market Form-Yard Cover-Combined Coverages”. The policy was continued in force by the payment of premiums therefore on the part of the appellees and was in full force and effect at all times herein material.
The provisions of the policy material to this action read:
“This policy shall also cover loss due to the death of live stock insured hereunder directly resulting from hail, and direct loss or damage to live stock insured hereunder caused by electrocution, including loss by electrocution resulting from electrical currents which are artificially generated, explosion, riot, riot attending strike, civil commotion, falling aircraft and objects falling therefrom, and theft; it being specifically understood that the word ‘theft’ shall mean an act of stealing and shall not include mysterious disappearance, shortage, nor any occurrence where there has been a voluntary surrender of the live stock, with the specific understanding and agreement that this Company shall not be liable for any theft loss or damage except where the theft occurs while the live stock is on the premises described herein, nor where there is involved either as principal or an accessory to the theft any owner of the premises from which the animals are stolen or any partner, member or employee of such owner; nor where there is involved either as principal or accessory any person having custody or control of the animals at the time of the theft or any partner, member, employee or bailee of such person or organization having custody or control of the animals.” (Emphasis added.)
The petition alleged that on or about the 29th day of January, 1970, at the auction premises described the appellees suffered the loss, through theft, under the terms of the policy described, of two black steers, two black heifers and one white-face heifer of the aggregate value of $707.29.
The petition also alleged that on or about the 7th day of July, 1970, at the auction premises the appellees suffered the loss, through theft, under the terms of the policy, of nineteen head of cattle of the aggregate value $3,162.10.
The petition further alleged in each instance to the notice of such loss and theft was promptly given to the appellant and written claim for such loss was made under the terms of the policy, but the appellant failed, neglected and refused to pay the claim.
The appellant answered alleging among other tilings that the petition fails to state any actionable cause against the appellant, and,
“That Plaintiffs at no time in support of their claims have provided this Defendant with any reasonably conclusive evidence that any loss they may have sustained was the result of a theft rather than of a mysterious disappearance, shortage, or other cause.”
The appellees’ claims for attorney fees and for punitive damages were disposed of by the trial court and are not the subject of appeal to this court.
At the pre-trial conference a copy of the insurance policy was admitted as an exhibit. It was agreed the interpretation of the policy was for the court, and that the policy would not be submitted to fire jury as a trial exhibit. Counsel also stated that the loss of the cattle and the value of such cattle could be stipulated. The appellant however, did not agree that the nineteen head of cattle lost on or about the 7th day of July, 1970, were delivered to Chanute or that they were stolen. There was no agreement concerning the five head of cattle alleged to have been lost on or about the 29th day of January, 1970.
Hillis Krokstrom, Sr., testified that he was one of the partners in the Chanute Livestock Auction. He testified concerning the manner in which the premises were built and the procedure in getting the cattle in and out of the pens. He identified plats and photographs of the various pens and alleys in the sales bam area. According to his testimony, on Thursday, January 29, 1970, they had a large sale and it was necessary to use some of the hog pens in the eastern portion of tire yard for cattle. Normally cattle are penned in the western portion of the yard. He explained the process by which the cattle were identified after being brought to the yards for sale, by tagging them with a number on a piece of light cardboard which is pasted on the right or left hip of the animal. The identity of the animal is thereby followed through the auction ring to the highest bidder, weighed and penned in accordance with the identity of the bidder to keep the bidder’s cattle together for simplification in loading out after the sale. After the sale that day a large semi-trailer truck was backed up to one of the hog docks loading hogs, obscuring, his vision from the office to the hog dock on the other side of the truck. An employee, Don Buster, was on duty at the hog dock but reported to Mr. Krokstrom that he had left the area to go to the west side of the yard to assist in loading cattle for a period of about fifteen minutes. Five head of cattle, identified by number and weight, were discovered shortly thereafter to be missing from the hog pen area where they had been penned with other calves. He testified that the missing five head of oattle could have been loaded out from tire hog dock in five minutes time. All other pens were checked and the five head were never located or found. The sheriff, State Brand Inspector, and the Kansas Bureau of Investigation were notified. These agencies made an investigation but to his knowledge they were never able to locate the five head.
The employee, Don Buster, who was at work at the time the five cattle were discovered missing, said lie was not in the area from which they were apparently taken; that sometimes people did take the wrong cattle, but usually they brought them back. He personally did not know about any five head of cattle missing until he was told.
Mr. Krokstrom further testified that on tihe Friday before July 6, 1970, he bought 34 head of cattle at Siloam Springs, Arkansas. On the 6th day of July, 1970, he was in Decatur, Arkansas, and purchased an additional 104 head of cattle at the sale there. He had left the 34 head at Siloam Springs until July 6th and contracted with the Bud Edwards Truck Line to pick up the 34 head at Siloam Springs and bring them to Decatur, Arkansas, to load with tire cattle purchased at Decatur for delivery to Chanute, Kansas. He had done business with Bud Edwards for about twelve or fourteen years. He instructed Mr. Edwards in the loading and unloading of the cattle, and specifically instructed Mr. Edwards to keep the 34 head separate. The cattle were to be delivered at the Chanute Livestock Auction later that night. He instructed that the other 104-head be placed in three other pens at Chanute. His previous experience with Bud Edwards had been very good and he had never had any shortage. He left the loading of the cattle up to Mr. Edwards, and he did not see the cattle loaded or count them when they were loaded either in Decatur or Siloam Springs.
Bud Edwards testified that he was instructed in accordance with the testimony heretofore given by Mr. Krokstrom to keep the 34 head of cattle separate that were picked up at Siloam Springs, Arkansas. With the help of the two drivers he sorted and loaded all of the cattle onto two trucks. He counted the cattle and gave instructions to the drivers just as they were given to him by Mr. Krokstrom. The two trucks left Decatur at a little before 8:00 p. m. He identified the drivers as Gail Bemis and Red Wright. Bemis had driven for him about two weeks prior to the incident of July 6, 1970, and worked the balance of the week and then went “swishhh”. He did not know where Mr. Bemis was at the time of trial. Mr. Wright had been employed by him for three or four years and Mr. Edwards found him to be an honest and reliable employee. The drivers returned to the truck terminal at Rogers, Arkansas, sometime before 6:30 a. m. the next morning, July 7, 1970, and left the trucks at the terminal. Later that morning Mr. Edwards had a telephone call from Mr. Krokstrom reporting nineteen head of cattle missing.
Mr. Edwards further testified that the trip from Decatur, Arkansas, to Chanute, Kansas, with the trucks which his drivers were driving would take about three and one-half to four hours. He said it was customary to deliver cattle at night and not unusual to deliver cattle when there was no one around to receive them.
One of the truck drivers, T. W. Wright, testified concerning the delivery of the cattle to Chanute on the night of July 6, 1970. He said he went to the Decatur sale and after the sale loaded cattle purchased by Mr. Krokstrom at Decatur as well as 34 head which had come from Siloam Springs. He said Bud Edwards was there at the time and supervised the loading of the cattle and the sorting of the cattle into the compartments on the two trucks. Mr. Wright counted the cattle before he started loading but did not remember exactly how many there were from Decatur. He did recall that there were 34 head from Siloam Springs. He had the health papers on the cattle and acknowledged Mr. Edwards gave him instructions concerning the delivery and the penning of the cattle, and the penning of the 34 head separately in one pen when delivered in Chanute. He said the cattle were loaded and were checked against sale tickets by Mr. Edwards as they were loaded. According to Mr. Wright the two trucks left Decatur about 7:30 p. m.
Mr. Wright testified that he had been to Chanute previously but understood that Mr. Bemis had not been to Chanute, so Mr. Wright drove the lead truck and Mr. Bemis driving the other followed all the way to Chanute. They stopped at the Kansas Port of Entry and both trucks went through the Port of Entry at the same time. Both trucks left the Port of Entry together and traveled together to Johnson’s Truck Stop near Erie, Kansas, where the drivers checked the cattle and had a cup of coffee. They were there about fifteen or twenty minutes. They then proceeded to the Chanute sales bam, arriving there sometime between 11:00 and 12:00 o’clock that night. Mr. Wright said he unloaded his truck first, with the other driver assisting and then the other truck was unloaded with Mr. Wright assisting. According to Mr. Wright’s testimony there were lights on in the cattle dock and cattle pen area where the unloading and penning were done. They saw no one else at the sales bam premises. There were no other cattle in the pens, and when he unloaded his truck the other driver was counting. When the other truck was unloaded the witness was counting. They penned 34 head which had come from Siloam Springs in a separate pen, and the other cattle which were purchased at Decatur in other pens. The count on the cattle unloaded checked out according to Mr. Wright. Neither he nor the other driver made any other stops. He testified that he did not take any cattle off of his truck prior to reaching Chanute and the other driver could not have stopped and taken any cattle off of the other truck. When they left the Chanute sales bam the gates were all closed and latched. As the drivers left the Chanute sales bam, he saw nothing unusual, but he did see a truck parked on the other side of the office by the hog chute as he drove out after unloading. When the cattle were unloaded at Chanute, Mr. Wright left the health papers and invoice papers fastened on the pens with a wire. Later that morning, he received a telephone call from Mr. Edwards reporting the loss of the cattle which had been reported to him by Mr. Krokstrom. He said there was nothing unusual about unloading cattle at night as they did at Chanute.
On cross-examination Mr. Wright testified that if there were any cattle missing at Chanute, he did not know what happened to them.
Officials who were notified of the loss of cattle on above dates at the Chanute sales bam were all called to testify. In the course of their investigation they never turned up any evidence as to what happened to the five head of cattle on the one occasion and the nineteen head of cattle on the other occasion.
The agent for the Hartford Insurance Company, Edwin H. Bideau, testified he wrote the policy in question and that the Chanute Livestock Auction had reported the above losses of the cattle.
The jury found the appellees were entitled to recover for the loss of cattle on each of the occasions and the amount of the loss was set at $707.29 for the five head of cattle and $3,123.10 for the nineteen head of cattle. Judgment was entered upon the verdict for the total sum of $3,830.39 together with interest thereon from the date of judgment.
Thereafter the appellant’s motion for a directed verdict notwithstanding the general verdict and the appellant’s motion for a new trial were overruled.
The appellant contends the trial court erred as a matter of law in construing the insurance policy, specifically the provisions above quoted concerning the term “theft”.
The trial court’s construction of the provisions of the policy in question is reflected in the instructions given to the jury. On this point the appellant attacks instruction No. 13 and 14. These instructions read:
“No. 13
“Plaintiffs have two separate claims for cattle alleged to have been stolen on two different occasions.
“The first claim is that on or about January 29, 1970, two black steers, two black heifers, and one whiteface heifer, were stolen from plaintiffs’ premises, and that they were worth a total of $707.29.
“Defendant has denied plaintiffs’ daim and the burden of proof is upon plaintiffs to prove the following:
“1. That the cattle were stolen from plaintiffs’ premises on or about January 29, 1970; and
“2. If the cattle were so stolen, what then value was at the time of the theft.
“The second claim is that on or about July 7, 1970, nineteen head of cattle were stolen from the plaintiffs’ premises, and that they were worth a total of $3,123.10.
“Defendant has agreed that plaintiffs purchased the cattle in Arkansas and that their value was $3,123.10, but defendant does not agree that they were delivered to Chanute and denies that they were stolen. Therefore, the burden of proof is upon plaintiffs to prove that these cattle were stolen from plaintiffs’ premises on or about July 7, 1970.
“No. 14
“You have been told that in order for plaintiffs to obtain a verdict in their favor, they must prove that the cattle were stolen, that is, that there was a theft. You have also been told, in Instruction No. 9, the standard of proof which you are to apply to the evidence.
“The word theft, or ‘stolen,’ as applied to this case, means that plaintiffs must prove that somebody took the cattle without authority and with the intent to deprive the owners permanently of the use and benefit of the property. If you do find that the property was stolen it is not necessary that plaintiffs prove who did it.
“As is true of all the other instructions which I am giving you, you will apply these rules separately to the two claims of plaintiffs.”
The trial court also gave a circumstantial evidence instruction.
The contention of the appellant is stated in its brief as follows:
“. . . The court simply required the plaintiff prove that the cattle were stolen and specifically stated that it was not necessary to prove who did it and nowhere instructs on the elements of mysterious disappearance or shortage.
“This as a matter of law is directly contrary to contract and under K. S. A. 60-251 (b) there was not even a need to object to such instructions, although appellant’s counsel did object to submitting any instructions to the jury. . . ."
The appellant concedes it is the duty of the court to construe the insurance policy and leave only questions of fact for the jury to determine. But it is argued where the insurance policy, as here, is not ambiguous and does not contravene public policy, the insured must prove that the loss comes within the coverage of the policy of insurance. To do so, it is contended, the insured would have to show something more than mysterious disappearance, and would have to show that none of the employees of the Chanute Livestock Auction, its agents, bailees or persons having charge of the cattle had anything to do with the theft of the cattle. It is argued the court cannot make another contract for the parties; that its function is to enforce the contract as made. (Citing, Clark v. Prudential Ins. Co., 204 Kan. 487, 464 P. 2d 253; and Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571.)
Whether the first three points asserted by the appellant have merit is dependent upon the action taken by counsel for the appellant in the trial corut.
The appellant participated in the pre-trial conference. There it was agreed the interpretation of the policy of insurance was for the court and not the jury. It was further agreed the policy would not be submitted to the jury as a trial exhibit. Therefore, the appellant is in no position on appeal to assert as error the failure of the trial corut to submit the policy to the jury as a trial exhibit.
The pre-trial conference contemplated in K. S. A. 60-216 has become an important part of our procedural process designed, among other things, to acquaint each party in advance of trial with respect to the factual contentions of the parties upon matters in dispute, thus reducing the opportunity for maneuver and surprise at the trial, and enabling all parties to prepare in advance for trial. Orders entered at the pre-trial conference have the full force of other orders of the court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice. (Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912; Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380; and Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 457 P. 2d 1.)
There is nothing in the record to indicate the appellant at the pre-trial conference made any request for the determination of issues other than those specifically set forth in the pre-trial order and the supplemental pre-trial order. Following entry of the pretrial order and supplemental pre-trial order the appellant made no objection, and made no request for modification or enlargement. Furthermore, there is nothing in the record to indicate that at the trial of the action the appellant made any objection to the procedure or the issues to be tried as defined by the pre-trial orders.
In due course at the close of evidence, the appellant having called as its only witness its insurance agent, the instructions prepared by the court were presented to counsel. The appellant neither requested any instructions nor objected to any of the instructions given by the court, which in effect construed the policy and defined the issues as set forth in the pre-trial orders and as developed by the evidence. The appellant in its motion for a new trial asserted no error concerning the instructions given by the court.
Under K. S. A. 60-251 (b) no party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection, unless the instruction is clearly erroneous. (Bott v. Wendler, 203 Kan. 212, 453 P. 2d 100.)
Were the trial courts instructions clearly erroneous as a matter of law? Under the circumstances presented by the record herein we think not.
It is a general rule that exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in dear and explidt terms. (Krug v. Millers' Mutual Insurance Ass’n., 209 Kan. 111, 495 P. 2d 949, and cases cited therein.)
Touching the burden of proof, the well-established rule is that when an insurer seeks to avoid liability on the ground that the acddent or injury for which compensation is demanded is covered by some specific exception to the general terms of the policy, the burden of proof rests upon the insurer to prove the facts which bring the case within such specified exception. (Sears v. Insurance Co., 108 Kan. 516, 196 Pac. 235.)
The distinction between “coverage” provisions and exculpating or “exclusionary” clauses in an insurance contract is the decisive factor in determining which party has the burden of proof on an issue, where coverage under the policy is disputed. The assured has the burden of proving that the loss was of a type included in the general coverage provisions of the insurance contract. (Ruffalo's Truck Serv. v. National Ben-Franklin Ins. Co., 243 F. 2d 949 [1957].)
Apparently the trial court in construing the provisions of the policy here in question, with the acquiescence of the appellant in the trial court, determined the coverage provisions of the policy included theft of cattle from the premises. This the trial court defined to be an act of stealing as set forth in its instructions. The subsequent clause, after the semicolon in the policy provision heretofore quoted, that theft “shall not include mysterious disappearance, shortage, nor other occurrence where there has been a voluntary surrender of the livestock” was construed by the trial court as an exculpating or exclusionary clause in the policy. This is the theory upon which the case was tried and submitted to the jury by the court’s instructions in the trial court. The appellant acquiesced in the presentation of the case on this theory throughout the trial proceedings. Points attacking the pre-trial orders and instructions given by the trial court are challenged for the first time on appeal, under a new theory which is asserted for the first time on appeal.
A party cannot on appeal be permitted to change its theory or raise new issues not previously presented to the trial court, or inconsistent with the position taken before the trial court. (Mater v. Boese, 213 Kan. 711, 518 P. 2d 482; and cases cited therein.)
With the case in this posture we are not called upon to construe the provisions of the policy to determine whether the trial court erred in its construction of the policy. The appellant is bound by the theory upon which the case was submitted in the trial court. Under the theory upon which the case was tried, the instructions given by the trial court were not clearly erroneous.
The last point asserted by the appellant is that the trial court erred in overruling its motion for a directed verdict at the close of the evidence because there was not sufficient evidence to submit the case to the jury.
Here the appellant argues there is actually no dispute as to the facts. It is stated that every witness for the insured simply stated that there was never any indication as to what happened to the cattle except that they were missing.
The mysterious disappearance of hogs for which recovery was sought under a contract of insurance was before the Nebraska Supreme Court in Raff v. Farm Bureau Ins. Co., 181 Neb. 444, 149 N. W. 2d 52 (1967). There provisions of the policy material to the risk were that: “ ‘(f) Theft and overturn. This insurance is extended to include direct loss by theft (but excluding escape, mysterious disappearance, inventory shortages, wrongful conversion and embezzlement), and overturn. . . .’” The evidence disclosed the hogs had strayed or escaped from the insured’s cornfield and were found by a neighbor on his land. Thinking the hogs belonged to another neighbor, he called him to report the presence of the hogs on his farm, and the other neighbor drove them to a point near his premises when he determined they were not his hogs, and he abandoned them near a bridge. There was testimony by the sheriff that the hogs were not on the neighbor’s farm and that he could find no evidence that the missing hogs had been sold. Two hogs returned one week after they had strayed away. The court held as a matter of law that the evidence was insufficient to support a finding that the hogs were stolen, and the loss of the hogs was held not within the theft provision of the policy. In the opinion the court defined “mysterious disappearance” under the terms of the theft policy “as disappearance under unknown, puzzling, and baffling circumstances which arouse wonder, curiosity, or speculation, or under circumstances which are difficult or hard to explain.”
Affirmative proof of theft, or the elements necessary to prove the claim, may be made by circumstantial evidence. (Ferguson v. Phoenix Assurance Co., 189 Kan. 459, 370 P. 2d 379, 99 A. L. R. 2d 118; and see 169 A. L. R. 220, at page 233). Here the proof of loss consisted of circumstantial evidence of theft. When the evidence presented by the appellees in this case is compared with the circumstantial evidence presented in the Raff case, where the neighbors involved were not even called to testify, it is readily apparent a much stronger case of theft is presented.
The appellant argues:
". . . There was testimony that the cattle could have been taken by mistake and there was testimony which indicated that one or more of the employees could have been involved in a theft. There were highly suspicious circumstances that a truck driver who only worked two weeks, finished out the week after delivering the cattle, and then disappeared. . . .”
The appellant’s statement that one or more of the employees of the appellees could have been involved in the theft is not supported by evidence in the record. An attempt was made to raise this point by creating an inference on cross-examination of appellees’ witnesses. This argument turns upon whose responsibility it was to sustain the burden of proof. The theory upon which this case was tried cast the burden upon the appellant and it produced no evidence to support such defense.
A careful review of the testimony of the various witnesses presented by the appellees in this case indicates there was not one scintilla of evidence that the appellees’ employees stole the cattle. The appellant called only one witness, the agent for the appellant, who testified as to the report made of the losses by the appellees. He said he had no reason to believe that any claim submitted by Mr. Krokstrom was falsified in any way.
The appellant simply argues that some event could have happened bringing into play policy defenses, even though the appellant presented no evidence to establish mysterious disappearance, shortage, nor any occurrence to indicate there may have been a voluntary surrender of the livestock.
Although the proof of theft in this case is supported only by circumstantial evidence, the evidence is sufficient, if given credence by a jury, to give rise to a fair and indeed almost an inescapable inference that the cattle were stolen from the premises of the appellees within the meaning of the term “theft” under the policy of insurance issued by the appellant.
The evidence established the loss of the five head of cattle on January 29, 1970, to have occurred within a fifteen minute period shortly after a big sale when many persons and trucks were present. They were missing from a pen at the hog dock where vision was obscured by another truck, while the attendant left to assist at the other side of the yard in loading cattle. Only five head were taken from a pen at the loading dock, leaving other cattle in the same pen so that a count would be necessary to determine the loss. A purchaser whose cattle were penned together for ease in loading would surely take all of his cattle in loading them out of the sales premises. All of the evidence concerning the five head missing points to theft as defined by the court in its instructions.
Theft of the nineteen head of cattle lost on the 7th day of July, 1970, is also supported by the circumstantial evidence. The evidence of delivery, if believed by the jury, places 34 head penned separately on the appellees’ premises on the night of delivery. The following morning a calf belonging to one of the cows, identified as being among the nineteen head missing and penned with the 34 head, was running loose in an alley. Again only a portion of all the cattle in the pen were missing, thus requiring a count to establish the loss.
If the appellees were required to prove who stole the cattle to establish proof of loss under the policy, there would be no need for insurance. The appellees could pursue the cattle and recover them. The substantial premium paid for a policy of this type would have been for naught.
Upon the issues submitted to the jury under the instructions, there was sufficient evidence in the record to support the jury’s findings that the loss of the appellees’ cattle on each occasion was the result of theft within the meaning of the policy of insurance covering loss by theft.
The judgment of the lower court is affirmed.
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Per Curiam:
This is an appeal from an order denying benefits under the workmens compensation act.
Appellant, while working as a waitress for appellee Waid’s on August 2, 1969, allegedly slipped and fell. She continued working despite pain in her back and leg for about one and one-half hours when she reported the incident to Waid’s manager and went home. She attempted to work the next day but worked only about one and one-half hours. Thereafter she consulted a chiropractor who treated her, his last treatment being given September 21, 1970. The chiropractor also prescribed home treatment consisting of hot baths which claimant later administered to herself. Claim for compensation was not filed until January 11, 1972.
The examiner, director and trial court all ruled that the claim was not timely filed. Whether a claim has been filed within the time fixed by statute (K. S. A. 44-520a) is primarily a question of fact (Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P. 2d 521). Here, among other things, it was disputed factually whether appellees had ever directed appellant to the chiropractor in the first place or had paid any compensation by way of medical treatment furnished her after September 21, 1970, so as to render her claim timely filed. The evidence sufficiently supported the trial court’s negative finding against appellant and its judgment is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by the petitioner, Eddie David Cox, from an order denying his motion to vacate sentence filed pursuant to K. S. A. 60-1507. The essential facts in the case are not in dispute and are as follows: On May 2, 1969, the petitioner entered a plea of guilty to the offense of felony possession of a pistol in the Johnson county district court. A sentence of one to five years was imposed at that time. Petitioner was received at the Kansas State Penitentiary on May 16, 1969, and began serving that sentence. Subsequently petitioner decided to appeal his conviction and was released on an appeal bond on March 9, 1970, by the Johnson county district court pending appeal of that conviction. On May 9, 1970, Cox was arrested by the Federal Bureau of Investigation on a federal charge of bank robbery. A bond was set in the federal case and Cox, being unable to make bond, remained in jail in custody of the federal authorities. On August 21, 1970, Cox was convicted in United States District Court for the District of Kansas on the bank robbery charge. On October 19, 1970, he was sentenced to 20 years in federal prison, which sentence was to run consecutively to any other sentence. On November 20, 1970, Cox was released to the state of Kansas for completion of his state sentence prior to beginning his federal sentence. On September 1, 1972, Cox was paroled from the state charge of felony possession of a pistol at which time the federal authorities immediately took custody so that he could begin his federal sentence. Cox was credited with 196 days on the federal sentence for the period from May 9, 1970, to November 20, 1970, inclusive, which time he had spent in federal custody awaiting trial on federal charges.
The petitioner has previously filed a motion under K. S. A. 60-1507 to vacate his sentence imposed in the Johnson county felony possession case. A motion filed on December 21, 1970, was denied by the trial court and affirmed on appeal by this court. (State v. Cox, 208 Kan. 190, 490 P. 2d 381.) The basic issue raised on that appeal was double jeopardy. The motion now before the court was filed in the district court of Johnson county on March 17, 1972. An attorney was appointed to represent petitioner in these new proceedings. In his present 60-1507 motion Cox seeks to have his Johnson county sentence credited with the time spent in United States custody pending his trial and conviction on the federal robbery charge. The period of time for which credit on his state sentence is claimed is the period of 196 days from May 9, 1970, to November 20, 1970, inclusive, which is the same period for which he has already received credit from the federal authorities on his federal sentence.
The trial court denied the motion because of abuse of the remedy provided by 60-1507, since the petitioner had previously filed such a motion which was denied. From the denial of his latest motion the petitioner has appealed to this court. The petitioner first contends that the trial court erred and abused its discretion in dismissing his 60-1507 motion on the grounds of abuse of remedy. Petitioner argues that the current motion presents an entirely new ground for relief not previously determined in the first 60-1507 proceeding and that his motion should have been considered because there has been a change in existing case law on the subject. Hence he argues that his current motion was not an abuse of the remedy provided by K. S. A. 60-1507. The state argues on this appeal that successive motions under 60-1507 should not be permitted, relying on Lee v. State, 207 Kan. 185, 483 P. 2d 482; Cantrell v. State, 210 Kan. 528, 501 P. 2d 840; and Kinnell v. State, 210 Kan. 785, 504 P. 2d 161. From our examination of the record it is clear that the issue raised in the present motion was not raised in the previous motion. The prior motion dealt with the issue of double jeopardy; the present motion is concerned with the petitioners right to credit on his state sentence for time spent in the custody of federal authorities awaiting trial on federal charges. We believe that the petitioner is correct in pointing out that the issue raised in this proceeding is one of constitutional significance based upon the authority of federal cases handed down after the petitioner s previous 60-1507 motion was determined. In Lee v. State, supra, we indicated that unusual circumstances or intervening changes in the law may well justify successive use of the postconviction remedy provided by 60-1507 where a new constitutional issue is involved. The district court might well have entertained the present 60-1507 motion on the basis that a constitutional ground not previously determined has been raised and an intervening change of law has been shown. Since there are no disputed issues of fact and the questions of law have been well briefed by the parties, we find that the interests of justice require that the case be determined on its merits at this time. We will therefore turn to the merits of tire motion.
The thrust of the petitioner’s position is that under the equal protection clause of the Fourteenth Amendment to the United States Constitution a man should not be kept in prison solely because of his lack of wealth. This principle was declared and applied in Williams v. Illinois, 399 U. S. 235, 26 L. Ed. 2d 586, 90 S. Ct. 2018, and Tate v. Short, 401 U. S. 395, 28 L. Ed. 2d 130, 91 S. Ct. 668. In United States v. Gaines, 449 F. 2d 143 (1971), the United States Court of Appeals, Second Circuit, relying on those two cases, held that a defendant was entitled to credit against his federal sentence for time spent in state custody after the state court set bail in connection with the state charges where it was shown that the defendant had not been released on bail solely because of lack of sufficient funds and thus had been unable to enter into federal custody. The court reasoned that the defendant Gaines’ lack of wealth resulted in his having to serve a sentence longer than a richer man would have had to serve, which was an impermissible discrimination according to Tate and Williams. It was pointed out that had Gaines had money to post his state bond and then entered federal custody he would have been eligible for a conditional release at an earlier date. It should be noted that in Gaines the defendant had not received any credit whatsoever on his sentence either in the federal court or the state court.
We believe that Gaines is distinguishable from the present case because that case involved concurrent sentences. In this case the federal sentence was imposed to run consecutively to the state sentence. The petitioner, Cox, was given full credit for the 196 days awaiting trial on his federal sentence. In cases where consecutive sentences have been involved the federal courts have held that a defendant is not entitled to credit on both sentences but only on one sentence. Where consecutive sentences are involved an indigent defendant who receives credit on one sentence would not be required to serve a sentence that a richer man would not have had to serve. Cases involving consecutive sentences where double credit has been denied are the following: Doss v. United States, 449 F. 2d 1274 (8th Cir. 1971); Radcliffe v. Clark, 451 F. 2d 250 (5th Cir. 1971); Shields v. Daggett, 460 F. 2d 1060 (8th Cir. 1972); and United States ex rel; Derengowski v. United States Attorney General, 457 F. 2d 812 (8th Cir. 1972). The case now before the court falls within the ambit of the rule pertaining to consecutive sentence. We, therefore, hold that the petitioner is not entitled to credit on his state sentence for the 196 days he was in custody awaiting trial on federal charges and for which he has already been given credit on his federal sentence. In view of our deciding this case on the merits it is not necessary to consider the other points raised on this appeal. The district court did not err in denying the petitioners motion.
Judgment affirmed.
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Per Curiam:
This is an appeal from a post-judgment order in a divorce case which denied the plaintiff’s wife motion increase child support and to modify the original decree to permit the plaintiff to mortgage certain real estate which had been awarded to plaintiff subjeot to a hen in favor of the defendant husband. On this appeal the plaintiff first contends that the trial court erred in not increasing child support. On appellate review this court will not disturb an order pertaining to child support absent a showing of manifest abuse of discretion. (Thompson v. Thompson, 205 Kan. 630, 470 P. 2d 787.) On the evidentiary record before us we cannot say that the district court abused its discretion here. As her second point the plaintiff contends that the trial court abused its discretion in refusing to modify the property settlement and decree to permit her to mortgage the real estate. In Drummond v. Drummond, 209 Kan. 86, 495 P. 2d 994, we held that “a trial court after entering an original decree which determines a division of property has no continuing jurisdiction of that part of the decree and no power to modify that part of the decree.” In view of Drummond it is clear that the trial court was correct in holding that it had no jurisdiction to subordinate the defendant’s lien to the mortgage hen proposed by the plaintiff.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
Plaintiffs brought this action seeking an injunction to restrain defendants from claiming the defendant corporation is the original Brooker Sales Company.
In response to plaintiffs’ petition, defendants filed an answer and cross-petition alleging the existence of an agreement between the parties executed in the form of the corporate minutes of the two corporations, wherein each corporation, authorized the other to use copyrights, sale programs, and all written and printed materials pertaining to the advertising and promotion of the original Brooker Sales Company.
The case was tried to the court without a jury. The trial court found the agreement was made essentially as alleged by defendants. Thus, although the action was filed in injunction, it became, in essence, one in contract and, although the question of unfair competition was considered, the case actually revolved around the trial court’s interpretation of the agreement.
The trial court, in construing the agreement, found that neither party had the right to claim to be the original company and that for either to do so would be an unfair trade practice. Based on its construction of the agreement, the trial court enjoined both parties from claiming to be the original company. It is only this point of the order from which plaintiffs appeal, asserting that the trial court’s conclusions of law on this single point are inconsistent with its findings of fact. All of plaintiffs’ assertions on appeal resolve into the ultimate question whether the trial court erred in restraining plaintiffs from claiming to be the original Brooker Sales Company.
The growth and financial success of the Brooker business, which consisted generally of promoting inventory reduction and liquidation sales for retail businesses stemmed from the industry and business acumen of C. C. Brooker, father of Paul and C. M. Brooker. In 1906 C. C. Brooker began conducting sales promotions for retail stores on a part-time basis; in 1916 he devoted full-time to the business, operating as Brooker Sales Company in Marion. In 1921 C. C. was joined by his brother Robert and the business was operated as Brooker Brothers. In 1921 a brother-in-law, Willard King, joined the firm and an Oklahoma branch was established, operating as Brooker-King Sales Company in Oklahoma City. In the meantime, Paul Brooker first became connected with the business working part-time during the years 1928-1929 while a student at Kansas University and full-time after 1929.
The business suffered from the impact of the depression in 1933. Brother Robert and brother-in-law King left the business, as did son Paul who became employed by Dun & Bradstreet Company in Chicago. C. C. Brooker was again alone in the business,. In 1941 C. M. Brooker helped his father conduct a few sales. In late 1941 the business was suspended because of World War II. In 1947 the business was reestablished and operated -under tire names Brooker Sales Service and Brooker Sales interchangeably.
In 1949 the business was incorporated as Brooker Sales, Inc., with C. C. Brooker and his two sons, C. M. and Paul, as incorporators. C. C. and C. M. devoted full-time and Paul worked part-time while he was still with Dun & Bradstreet until 1951 when Paul also devoted full-time to the business. In 1952 Paul purchased a full one-third interest in the corporation.
In May 1953 Brooker Sales Serice, Inc. was incorporated and chartered in the State of Illinois. C. C., C. M. and Paul Brooker each owned one-third of the capital stock and were named as the incorporators. The purpose of the creation of Brooker Sales Service, Inc. was to be able to apportion profits between two corporations and, thus avoid, corporate surtax then in effect on profits exceeding $25,000.00. The business of both corporations was carried on essentially as one business from the same office in Wichita.
By 1961 serious conflicts had developed between the two sons and it was decided to separate the two companies with the father retaining his one-third stock in each company. This was accomplished by action of the respective boards of directors, as reflected in the minutes of each corporation.
The trial court’s findings of fact with respect to the separation agreement and the following events which led to this litigation are as follows:
“10. June 13, 1961, due to serious conflicts between Paul K. Brooker and C. M. Brooker, Paul K. Brooker obtained two-thirds (⅔) stock in Brooker Sales Service, Inc., and C. M. Brooker obtained two-thirds (⅔) stock in Brooker Sales, Inc. C. C. Brooker retained one-third (⅓) interest in each company. An Agreement was made whereby both companies are authorized to use all ‘copyrights, materials, sales programs, signs, banners, letters of recommendation, mats and all written and printed materials’ of both companies which had been previously copyrighted, used or prepared. This Agreement was prepared by Mr. Eugene Coombs, attorney for the defendants.
“11. In 1961, both companies began operating in accordance with the Agreement of June 13, 1961, with both using the ‘copyrights, materials, sales programs, signs, banners, letters of recommendation, mats and all written and printed materials.’ Neither company used the word ‘ORIGINAL’ in their advertising or on their letterheads, but both companies competed vigorously with each other.
“12. 1962, Brooker Sales, Inc., started using ‘original’ in advertising and has continued using ‘original’ until enjoined from doing so in this case. Jerry Crowley began working full time for Brooker Sales Service, Inc. Brooker Sales Service, Inc.’s attorney protested to C. M. Brooker and Brooker Sales, Inc.’s attorney regarding their use of ‘original’ and calling Brooker Sales Service, Inc. a ‘newly formed organization.’
“13. 1964, C. C. Brooker sold his one-third (⅓) interest in Brooker Sales Service, Inc. and worked exclusively for Brooker Sales, Inc.
“14. 1970, Brooker Sales Service, Inc., now Paul Brooker Sales International, Inc., began using ‘original Brooker.’ ”
Based on the findings recited, the trial court entered conclusions of law in pertinent part as follows:
“1. The intent of the Agreement of June 13, 1961, was that both plaintiff and defendant companies would be on an equal basis with both having full use of all letters of recommendation, copyrighted materials, banners and other items formerly used by either company, or both of them.
“2. It is contrary to the Agreement of June 13, 1961, for either plaintiff or defendant company to claim to be the ‘original’ and also for either party to do so in an unfair trade practice which should be and is hereby enjoined.
“3. C. C. Brooker is the founder of both plaintiff and defendant companies, and both plaintiff and defendant companies have advertised this fact and either or both are free to continue to do so as long as it is done fairly and in good taste.
“4. Plaintiffs and defendants are enjoined and restrained from making false or misleading statements about the other, and from otherwise carrying on unfair trade practices designed to injure the other.
“5. The Court will look with disfavor on any of the parties using statements or findings of the Court, allegations or statements in pleadings or any proceedings in this case in any advertising.
“6. As a further conclusion of law, the parties are prohibited from in any way saying that any action performed prior to the division of the companies is exclusive with either company.”
Judgment was entered enjoining actions of the parties in accordance with the conclusions of law.
Counsel for the parties are to be commended for working out a stipulation agreement for the record on appeal in which they agree the trial court’s findings of fact are true and correct and that the corporate minutes are valid in all respects. The parties further stipulated that the name of Brooker Sales Service, Inc. was changed on September 24, 1964, to Paul Brooker Sales, Inc., and later to Paul Brooker Sales International, Inc. The efforts of counsel in stipulating for the record has lightened our load on appellate review and undoubtedly lessened the cost of this appeal.
In their brief on appeal plaintiffs contend the trial court’s judg ment that plaintiffs be enjoined from claiming to be the original Brooker firm is contrary to the results dictated by the findings of fact and the result oreates confusion in the market place and prevents plaintiffs from advertising the correct history of their firm. In their argument on this point plaintiffs attempt to relate this action to one brougth for injunctive relief against unfair competition.
Plaintiffs cite a number of cases from other jurisdictions dealing with unfair competition or trade practices with respect to the use of a title or name usually the surname of the founder of a business. For example in Florence Mfg. Co. v. J. C. Dowd & Co., 178 Fed. 73 (2nd Cir. 1910) it was held that a competitor should be restrained from offering for sale an article, packaged, styled and dressed in such manner as to deceive purchasers into believing they were buying goods of the complainant’s manufacture.
Sheffield-King Milling Co. v. Sheffield Mill & Elec. Co., 105 Minn. 315, 117 N. W. 447, was an unfair competition-injunction action involving the use of a family name. The case stands for the proposition that any person is entitled to use his own name, as a trade name in business either alone or associated with others in a partnership or corporation. He may not, however, use his name as an artifice to mislead the public as to the identity of the business and thereby unfairly divert the business of another, who first selected the trade name, established a business, and produced an article which is identified by name.
Likewise, in Donnell v. Herring-Hall-Marvin Safe Co., 208 U. S. 267, 52 L. Ed. 481, 28 S. Ct. 288, it was held that a stockholder and officer of a corporation leaving his family name, after that corporation sold its good will, trade name, etc., does not lose his right to carry on a similar business under his own name. However, he may be enjoined by the purchaser of the original corporation from using any name or advertising indicating that he is the successor of the original corporation or that his goods are the product of that corporation.
Plaintiffs emphasize the case of Friend v. H. A. Friend and Company, 416 F. 2d 526 (9th Cir.) because they say it bears a striking resemblance factually to the instant case. H. A. Friend established H. A. Friend & Co., Inc., a wholesale paper produots business, in Illinois, ownership passed to members of the Friend family. Wilber Friend, a son of the founder, had a falling-out with other members of the family, sold his interest in the business, and moved to Cali fomia. Wilber established a paper products business similar to the original business and began operating under the name of Friend & Company. In an injunction suit Wilber was found by the trial court to have vigorously and fraudulently exploited the similarity of names. The injunction granted by the trial court restraining Wilber from using the name “Friend” unless preceded by the word “Wilber” was upheld by the court of appeals. The Friend oase is analogous to that at bar only in that it also involved a family business and the use of a family name. In Friend son Wilber sold out and gave up all of his interest in the family business and proceeded to start up a competing business of his own. In the instant case the two firms existed long before the agreement to split-up the business. The father agreed to and did — for a time — participate on an equal basis in the operation of both companies. In Friend, Wilber was restrained from using the surname unless preceded by his given name. In the instant case Paul’s given name has been a part of the business name of defendant corporation since 1964.
Other cases cited by plaintiffs involve either a prior established trade name or trademark coupled with a subsequent pirating of such name or trademark; or the unauthorized claim to succession or some other deceptive, misleading or fraudulent use of a previously established trade name. Injunctive relief was granted to prevent the continuation of these unfair practices.
In general the oases cited by plaintiffs follow the established rules that every person has a right to use his own name for business purposes, but such right is subject to restriction where the name has a secondary meaning, or where the name is used for the fraudulent purpose of deceiving and confusing the public and injuring a competitor. A person may not use his own name for the express purpose of appropriating the business or good will of a competitor, or resort to any artifice or contrivance in the use of his own name for the purpose of misleading the public as to the identity of his business or goods produced. (52 Am. Jur., Trademarks, Tradenames, Etc., § 133, pp. 608, 609; 44 A. L. R. 2d, Anno., p. 1156.) The limited number of Kansas decisions dealing with or touching upon the subject adhere to the foregoing principles. (See Powell v. Valentine, 106 Kan. 645, 189 Pac. 163; Milling Co. v. Flour Mills Co., 89 Kan. 855, 133 Pac. 542; and Mill Co. v. Kramer, 82 Kan. 679, 109 Pac. 692.) Decisions from this and other jurisdictions are considered in American Fence Co. v. Gestes, 190 Kan. 393, 375 P. 2d 775, wherein the “American Fence Company” by its prior adoption of the name and continued use thereof for many years was held to have original trade name rights and entitled to protection under the doctrine of unfair competition as against a new competitor using the name “All American Fence Company.”
An examination of the cases cited by plaintiffs reveals that in each case discussed, an absolute transfer of the business including good will and trade names had taken place; the seller subsequently attempted to start a business similar to that which he had sold and was either enjoined from tire use of trade names which he had sold or restricted to the extent that explanations differentiating between the produots or literature of the business, which ever the case might be, must be printed on the product or literature of the business.
None of the cases cited by plaintiffs deals with a situation where the continued use of various businesses identifying indicia is controlled by an agreement between the parties as in the instant case. In conclusion of law No. 1 the trial court determined that it was the intent of the agreement that both companies were to be on an equal basis with both having full use of all advertising and copyrighted materials formerly used by either party. Conclusion No. 1 is not challenged by plaintiffs and is fully supported by the evidence and the trial court’s findings of fact. Plaintiffs center their attack on conclusion No. 2 on the ground that the trial court’s determination that it was contrary to the agreement for either party to claim to be the original company is inconsistent with the results dictated by the findings of fact.
In its findings of fact the trial court traced the Brooker business from its origin by the father. The two sons were incorporators in the first corporation and, likewise, in the second. When the business was separated by the 1961 agreement each son was placed on an equal basis in the two corporations with equal rights to the business. The father agreed to devote his time on an equal fifty percent basis between the two corporations. This business history, coupled with the express provisions of the 1961 agreement, led to the trial court’s conclusion that the parties intended that both corporations have the right to equal use of any business identification pertaining to the original business or its origin. We think it only natural that the trial court would follow with the conclusion that to grant either the exclusive right to claim it was the “original” would be contrary to the agreement. On the other hand, the trial court in conclusion No. 3 granted both the right to advertise the fact that C. C. Brooker was the founder of both companies which, in fact, he was.
The rights of parties to the use of a trademark or trade name involved in a transaction may be governed or restricted by contracts. (52 Am. Jur., Trademarks, Tradenames, Etc., §38, p. 530.) Where there is an absolute transfer of a trademark or trade name, the transferee ordinarily succeeds to all the rights of the transferor with respeot to the use thereof. Here, however, there was no absolute transfer, but rather a division of assets coupled with the express retention by both corporations of the right to use all copyrighted materials, etc.
It is true that in granting equal use of the various materials the term “originar was not specifically enumerated in the 1961 agreement. However, since the undisputed intent of the agreement was to place both on an equal basis the extentions of the right to one and exclusion of the other to such use would certainly be contrary to such intent. Had the parties intended that one or the other of the corporations would have die sole right to claim itself as the original Brooker company, it could have easily been included in the agreement.
Since the intent of the agreement was to put the parties on an equal basis, either corporation was entitled to claim to be the “original” or neither was entitled to do so. The latter is obviously the sensible conclusion, since to allow both corporations the right to claim to be the “original” would certainly create confusion among the public. The law favors a construction which will make a contract valid rather than invalid unless that construction is required by the terms of the agreement in the light of surrounding circumstances (17 Am. Jur. 2d, Contracts, §254, pp. 647-648). The findings of fact support tire trial court’s construction of the agreement and the construction reached does not provide for an illegal result.
Finally, plaintiffs contend that the doctrine of laches should be invoked: first, to prevent defendants from complaining of the use of the term “original” and, second, that laches should bar defendants’ counterclaim for an injunction. Neither contention has merit. In finding of faot No. 12, which is not challenged by plaintiffs, the trial court found that defendants promptly protested the plaintiffs’ use of the term. Moreover, as defendants point out, plaintiffs failed to raise laches in their pleadings. Laches is an affirmative defense and must be pleaded (K. S. A. 60-208 [c]; Gard Kansas Code of Civil Procedure [1973 Cumulative Supp.], §60-208 [c]); since plaintiffs failed to raise it in their answer to defendants’ counterclaim or during the trial they are precluded from raising it for the first time on appeal.
The record discloses no error — the judgment is affirmed.
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The opinion of the court was delivered by
Foth, C.:
This is a class action in which plaintiff sued on behalf of himself and other landowners in Overland Park who are connected to a sewer system operated by the city of Leawood. He sought to enjoin Leawood from charging his class more than fifteen dollars per year for the use of the sewer, and to recover sums previously paid in excess of that amount. His claim is based on certain covenants in “sewer declarations” of a private sewer company which he alleges are binding on the city as the company’s successor in interest. Both parties moved for summary judgment, the trial court denied relief, and plaintiff has appealed.
The facts are not disputed, and are set out in the trial court’s order, together with its conclusions of law:
“In 1945 Kroh Bros., Inc., a Missouri corporation licensed to do business in Kansas, a real estate developer of the area now comprising Leawood, Kansas, contracted for the construction of a sewage treatment system to replace individual septic tanks in the area of development. A sewer declaration filed with the Register of Deeds of Johnson County, Kansas, on February 16, 1946, extended to area residents the privilege of connecting to the system. Paragraph 4 of that declaration providing for the financing of such system stated that annual assessments for each connecting resident would not exceed $10.00. No period of duration of this limitation was expressed in the instrument.
"As additional land owned by Kroh Bros., Inc., was developed, additional sewer declarations were filed. However, beginning with the declaration filed with the Register of Deeds of Johnson County, Kansas, on April 2, 1952, the $10.00 limitation on the annual assessment was deleted.
“In 1954, at the insistence of the Federal Housing Administration, as a prerequisite for continued federal insurance of mortgages on area homes, a trust deed was executed between Kroh Bros., Inc., and the municipal corporation of Leawood, Kansas. The terms of this trust deed provided that in the event Kroh Bros., Inc., failed to operate the sewage system in accordance with the terms of the trust deed, the City of Leawood, Kansas, would become obligated to assume operation of the system. This trust deed was filed with the Register of Deeds of Johnson County, Kansas on January 12, 1955. Provision No. 6 of this instrument setting forth the annual service assessment provided ‘that the maximum amount for which each owner shall be liable shall not exceed $15.00/ Again, as in the 1940 [sic] sewer declaration executed by Kroh Bros., Inc., no period of duration for this limitation was expressed.
“During the ensuing years in which Kroh Bros., Inc., continued to own and operate the sewage system under the terms of the trust deed two other contracts affecting this system were executed. On October 7, 1957, a sanitary sewer agreement between the county court of Jackson County, Missouri, Kroh Bros., Inc., the City of Leawood, Kansas, and Kansas City, Missouri, was signed. Two Missouri areas needed access to a sewage treatment system. Kroh Bros., Inc., also needing additional capacity agreed to contribute initially $300,000.00 for the development of a Missouri system in return for the right to connect 3,500 Kansas homes to the completed system. Kroh Bros., Inc., also retained an option to acquire additional connections on payment of specified amounts. Cost overruns in the development of the Missouri system eventually forced Kroh Bros., Inc. to increase its contribution to $425,000.00. Completion of this Missouri system allowed Kroh Bros., Inc., to place two of its Kansas plants on a stand-by basis. On November 9, 1957, Kroh Bros., and the City of Leawood, Kansas, executed a contract which specified the exact duties of Kroh Bros., Inc., in regard to the sewer system and provided for the disposition of monies received by the company from sewer connection fees.
“Thereafter on December 14, 1963, Kroh Bros., Inc., deeded title to the system to the City of Leawood, Kansas. In making this transfer free and clear to Leawood, Kroh Bros., Inc. absorbed a deficit of $180,000.00 which had been incurred in the operation of the sewage system. In the deed conveying the title of the system to Leawood, no mention was made as to any limitation on the maximum annual assessment permissible. However, the deed did make reference to the preceding Sewer Declaration of 1945 and the trust deed of 1954 and stated that the transfer was to be made ‘in accordance with the provisions and intent of the foregoing instruments’.
“Plaintiff asserts that the language of the 1945 sewer declaration and of the trust deed limiting the annual assessment for sewer service to $10.00 and $15.00 respectively, create covenants or restrictions running with the lands; that the City of Leawood, Kansas, had notice of the recorded limitation in the sewer declaration and expressly agreed to the limitations set forth in the trust deed and, therefore, holds title to tire sewage system subject to these covenants. On this theory, plaintiff, representing the class of home owners similarly situated, seeks recovery of the difference between tírese limits and those annual charges assessed by Leawood in excess thereof. Defendant argues that if in fact covenants have been created which do run with the land in favor of the plaintiff, such covenants are inconsistent with the statutory authority of a municipal corporation to establish an equitable service charge based on the quantity and character of sewage discharged in the system, are unreasonable in nature, are adverse to the proper development of the community, and are contrary to the public good; that restrictive covenants are to be construed strictly; that covenants for which no period of duration is expressed should be limited to such time as seems reasonable within the nature of the circumstances, and, therefore, these covenants should not now be enforced against the City of Leawood.
CONCLUSIONS OF LAW
“K. S. A. 12-631 (c) provides that where a city has acquired sewer facilities within the terms of K. S. A. (Supp.) 12-631 (b), as is the case here, that city, ‘shall have the right to establish just, reasonable, and equitable service charges to be paid to such city for the use of such sewer system, said charges to be based on the quantity and character of both the sewer discharge in the system of the city. . . .’
“K. S. A. 12-631 (c) was enacted in 1947, and only those members of the class represented by plaintiff which contracted with reference to the covenants for the purchase of their lots between December 28, 1945, the date of the first sewer declaration and July 1, 1947, the date K. S. A. 12-631 (c) became effective, can rely on the 14th Amendment of tíre Federal Constitution and its prohibition against state infringement on private contractual rights in support of their contentions; the covenant is not enforceable by those members of the class contracting subsequent to July 1, 1947. Although the covenants involved herein ‘run with the land’, it does not appear that they should be referred to as ‘restrictive’ covenants.
“Authority supports the position that where enforcement would be inconsistent with the statutory grant of authority or would be detrimental to the normal development of the community, restrictive covenants will not be enforced. Harris vs. Pease, 135 Conn. 536, 66 Atlantic 2d 590 (1949). Similarly, where enforcement would be contrary to public policy and adverse to the interest of tire general public, limitations will not be favored. Andrews vs. Metropolitan Bldg. Co., 349 Mo. 927, 933, 163 SW2d 1024, 1028 (1942). Furthermore, contracting to arbitrarily limit its authority under K. S. A. 12-631 (c) would be an ultra vires act by a municipal corporation and such contract would, therefore, be void. Because enforcement of these covenants would make compliance by Leawood, Kansas, with its statutorily imposed duty to provide an effective sewer treatment economically unfeasible, such limitation imposed subsequent to K. S. A. 12-631 (c) will not be enforced.
“As to those members of the class represented by plaintiff that contracted for the purchase of their lots between December 28, 1945 and July 1, 1947, the covenant is unreasonable. The general rule is that the duration of covenants, if not specifically limited by the conveyance, is for a reasonable time, considering the nature of the circumstances and the purpose of their imposition. 20 Am. Jur. 2d Covenants, Conditions, etc. § 3. In the beginning, the maximum charges were sufficiently high to allow operation of a new treatment system without economic hardship. With the passage of time, bringing substantial development within the area the necessity for increasing maintenance, these limitations have become unrealistic and unreasonable in the fact of unforeseen inflation. In light of the changed circumstances, continued enforcement of these restrictions would be unreasonable, oppressive, and would seriously compromise a most necessary public health service. Therefore, those limits set forth in the above discussed instruments relating to the maximum assessment permissible will not now be enforced against the City of Leawood, Kansas, even as to those parties purchasing prior to the enactment of K. S. A. 12-631 (c), and the defendant may assess against plaintiff and the members of the class represented by plaintiff for sewer charges an annual amount reasonably necessary for tire maintenance and operation of the sewage system.”
We agree with the trial court, and concur generally in its reasoning.
It will he observed that the trial court dealt separately with two groups of plaintiff’s class; those who bought their property before July 1, 1947, and those who bought afterwards. That is the effective date of die act authorizing the city to acquire and operate this private sewer system (Laws 1947, ch. 131.)
As to those purchasing after July 1, 1947, the answer is clear. They were on notice of the provisions of die act, and must be deemed to have contracted with reference thereto. Securities Acceptance Corporation v. Perkins, 182 Kan. 169, 318 P. 2d 1058; Rankin v. Ware., 88 Kan. 23, 127 Pac. 531; Edwards v. United States, 215 F. Supp. 382 (1963); 17 C.J.S., Contracts, §22. Cf. Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 58 P. 2d 1108; Stevens v. Farmers Elevator Mutual Ins. Co., 197 Kan. 74, 415 P. 2d 236. They therefore knew that if the city ever acquired their sewer system it would have the statutory right under what is now K. S. A. 12-631c “to establish just, reasonable, and equitable service charges to be paid to such city for the use of such sewer system.”
Equally important, they also knew that the same section provided that “No revenue derived from ad valorem taxes shall be used for the acquisition, operation and maintenance of the sewer facilities provided for in this act.” This provision, in effect, made it mandatory that the city fix charges sufficient to defray the cost of maintenance and operation; it was forbidden to use tax money for these purposes. It is undisputed in this case that even the $15 per year contended for by plaintiff would be insufficient to cover current maintenance and operating costs. (There is no contention that the current service charges are not “just, reasonable and equitable.”)
If the city were bound by a $15 per year limitation it could not operate the sewer system — an operation obviously essential to the health, safety and welfare of the community, as the trial court noted. We therefore agree with the trial court that even if the city intended to contract for such a limitation it would have been ultra vires. A city cannot contract away its statutory duties and responsibilities, particularly where they touch upon the police power. Northern Pacific Railway v. Duluth., 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 341; N. Y. & N. E. Railroad Co. v. Bristol., 151 U. S. 556, 38 L. Ed. 269, 14 S. Ct. 437. Cf. Phillips Petroleum Co. v. Jenkins, 297 U. S. 629, 80 L. Ed. 943, 56 S. Ct. 611; State, ex rel., v. City of Topeka, 176 Kan. 240, 270 P. 2d 270; Board of Education v. Phillips., 67 Kan. 549, 73 Pac. 97; City of Clearwater v. Bonsey, 180 So. 2d 200 (Fla., 1965); City of Daytona Beach v. Stansfield, 258 So. 2d 809 (Fla., 1972). (In the Florida cases it was held that a city could not by contract bind itself to sell water at less than cost, and that a contract which purported to do so would not be enforced.) And, of course, persons dealing with a municipality are bound to take notice of the limitations on its authority to contract. Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P. 2d 875.
As to those who bought prior to the 1947 act, the situation is slightly different in that they cannot be charged with notice of the specific terms of the legislation. They can, however, be held to recognize that covenants (“restrictive” or otherwise) will be enforced in equity only so long as they remain reasonable in the light of their purpose. Maurer v. J. C. Nichols Co., 207 Kan. 315, 485 P. 2d 174; Hecht v. Stephens, 204 Kan. 559, 464 P.2d 258; Clark v. Vaughan., 131 Kan. 438, 292 Pac. 783.
Insofar as the city is concerned, enforcement at this time is clearly unreasonable because, as pointed out above, compliance with the contractual limitations would render it impossible for the city to operate the system. What may have been reasonable in 1945 is not in 1974.
We note here that the original covenantor, Kroh Bros., Inc., is not a party to this lawsuit. We are therefore not called upon to decide whether the 1945 declaration, with its $10.00 per year limit, would be enforceable against it. It may even be that its 1963 deed to the city of Leawood — which the parties could anticipate would be compelled to charge more than the agreed maximum — constituted a breach of the corporations agreement with plaintiff and his class. Neither do we decide whether the maximum limit is a covenant “running with” and “burdening” the land comprising the sewer system. There are obvious theoretical and practical difficulties with such a concept. What we do decide is that the covenant cannot be enforced against the city of Leawood where the result would be to render the city incapable of carrying out its statutory responsibilities.
What has been said disposes of plaintiff’s argument that the city’s action impairs the obligation of his class’s contracts. As to those buying after July 1, 1947, there was no contract not subject to the express qualifications of the statute. As to those buying before, there was no “impairment” beyond that always present when equity refuses to enforce a covenant which has outlived its; usefulness.
The court below correctly refused to enforce the covenant, and its judgment is affirmed.
APPROVED BY THE COURT.
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Per Curiam:
The appellant was injured when he stepped on a broken brick and fell in a passageway, under the control of his landlords (appellees), which it was necessary for him to use to gain access and egress to and from premises he had rented.
The trial court submitted the issues to the jury, and judgment for the defendants resulted when the jury, answering a special question, found that the defendants did not “cause or knowingly permit conditions to exist on the access way to the plaintiff’s work shop that prevented the access way from being reasonably safe for the plaintiff’s use.”
Appellant complains that the evidence shows conclusively that the access way was not reasonably safe and that the appellees did knowingly permit the condition to exist; and that the trial court erred in submitting this issue to the jury. The flaw in appellant’s position on this point is that although the court indicated in the pre-trial order that this issue would be submitted to the jury by way of a special question, the appellant did not object to its submission in that manner and made no objection to the question after the evidence record was made and before the jury retired. In fact, the record shows that the objection is raised for the first time on this appeal.
The appellant cannot now complain after choosing by acquiescence to take his chances on this important issue with the jury and having it resolved against him. Our own decisions to this effect are so numerous as to make specific citations unnecessary.
However, we call attention to Bott v. Wendler, 203 Kan. 212, 453 P. 2d 100, construing K. S. A. 60-249 (a). That section deals with special questions and expressly provides for waiver where a party fails to demand the submission of omitted issues of fact to the jury. There is a special reason for such an affirmative provision in the code, as shown by the opinion in that case. But the reasoning is equally applicable where issues are erroneously submitted, as appellant claims was the case here. The appellant waived his objection by not raising it in the trial court.
The appellant also objects to an instruction given by the trial judge. Here again there was no objection to the instruction. While, standing alone, the instruction may be subject to some criticism as to form, it is not of such character that error can be predicated upon it in the absence of objection in the court below. Hagood v. Hall, 211 Kan. 46, 505 P. 2d 736. Furthermore, the other instructions are not shown in the printed record. Cf. Curby v. Ulysses Irrigation Pipe Co., Inc., 204 Kan. 456, 464 P. 2d 245, Syl. ¶ 2.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is a workmen’s compensation proceeding. The examiner found generally for claimant and awarded compensation for temporary total disability for a period of not to exceed 415 weeks. Director’s review was not requested and that officer entered pro forma approval of the examiner’s award. Upon respondent’s appeal the district court determined that claimant was entitled to compensation for temporary total disability for a limited period only and claimant now appeals to this court.
At the hearing before the examiner the claimant and three medical doctors testified. We summarize that testimony as contained in the record on appeal in the aspect most favorable to respondent on disputed factual issues.
The claimant, Milton Boyd, III, a thirty year old resident of Fort Scott, commenced his employment with respondent Yellow Freight Systems, Inc., in August, 1968. He was a maintenance man in respondent’s service department in which capacity he was required to change tires and wash, fuel and generally prepare trucks for their trips. On August 27, 1971, while trying to lift a truck hood which had become stuck, he experienced a sharp pain in his back. Thereafter he consulted a doctor at Pittsburg, who treated and released him to return to work about September 12, 1971. Claimant then consulted respondent’s physician, Dr. DeTar of Joplin, Mo., for a time. This doctor released him about September 28, 1971, to return to work. Claimant then worked one full shift but could not perform his duties. Since he felt unable to continue making trips to the company doctor at Joplin because of pain, he consulted Dr. Basham of Fort Scott who treated him over a period of time.
Claimant testified at the hearing before the examiner on March 13, 1972, he still had pain in his low back, that bending and sitting or standing too long aggravated his back pain and caused pain in his legs; he had never before experienced back difficulty; he felt unable to do any work requiring him to bend or lift.
At the instance of claimant’s counsel he was twice examined by Dr. Mueller, Joplin, Mo., and at respondent’s request was examined by Dr. Overesch of Kansas City, Mo. Both of these doctors specialized in orthopedic surgery.
All three of the doctors who testified found that claimant had a congenital back defect, consisting of a transitional vertebra. This condition was variously described as a fifth lumbar vertebra which resembles the sacral type more than is normally seen with a narrowing of joint space between L-5 and S-l; a vertebra which in its early stage couldn’t make up its mind to become a part of the sacrum or a free lumbar vertebra and consqeuently had some aspects of each; and a vertebra not completely sacralized and yet not completely lumbarized.
Dr. Basham, testifying for claimant, found also that claimant had early arthritis in the sacral joint. He further found muscle spasm in claimant’s back. He was of opinion claimant had suffered muscle sprain and that tire accidental injury had aggravated his preexisting arthritic and congenital back conditions. He believed the sprain would be only temporary; however, claimant’s unstable back condition rendered him vulnerable to further sprain and return to heavy work would inevitably result in recurrence of disability. He stated that when claimant’s muscle strain cleared up there would be no permanent disability caused by the accident of August 21, 1971. Dr. Basham last examined claimant on March 6, 1972.
Dr. Mueller testified on claimant’s behalf that he examined claimant twice, on December 15, 1971, and April 12, 1972. On his first examination he found muscle spasm but on the second this condition was gone and the only evidence of injury was claimant’s complaints of pain; claimant was much improved and there were no objective symptoms of injury; claimant was largely restored to- his preaccident level of disability, but reaggravation of his congenital back condition was possible if he returned to work.
Dr. Overesch, testifying for respondent, stated he examined claimant November 22, 1971. He did not find true muscle spasm nor any other objective evidence of orthopedic disability attributable to accident. He was of opinion claimant had sustained a sprain but had recovered; claimant had no disability and was able to- return to his previous work on November 22, 1971.
The director approved the examiner s award of compensation for temporary total disability on January 8, 1973, and respondent thereafter timely filed its notice of appeal with the director. On February 2, 1973, respondent, a qualified self-insurer, mailed a commercial surety bond to the clerk of the district court pursuant to K. S. A. 44-556 and 44-530. On February 5, 1973, the clerk received from the director copy of respondent’s notice of appeal and that official thereupon docketed the appeal and filed respondent’s bond previously received. The clerk did not formally approve the bond. Claimant promptly filed a motion to dismiss respondent’s appeal for failure of timely filing of proper bond. This motion was denied, the appeal was orally argued and submitted and on March 16, 1973, the trial court directed a letter to counsel for the parties, in pertinent part, as follows:
“1. The Court adopts the Stipulations, Issues and Summary of Evidence contained in the award of Phillip J. Saia, Examiner for the Workmens Compensation Director of the State of Kansas, of December 26, 1972, as approved by Bryce B. Moore, Workmen’s Compensation Director for the State of Kansas on January 8, 1973, and said Stipulations, Issues and Summary of Evidence are incorporated herein and made a part of this order.
“2. In addition, the court finds:
“a. That on August 27, 1971, Claimant met with personal injury by accident, which arose out of and in the course of his employment.
“b. That Claimant’s average weekly wage was $189.60.
“c. That as a result of said accidental injury Claimant suffered from a muscle strain which has since that time cleared up; that the Claimant was bom with a congenital unstable low back and will have that congenital defect for the remainder of his life; that Claimant was temporarily disabled from performing his labor because of the muscle strain he received by reason of the personal injury on August 27, 1971, but that the period of maximum convalescence has been reached and that the Claimant has sustained no residual disability as a result of the muscle strain.
“d. That Claimant is not entitled to compensation for temporary total disability.
“Therefore, judgment is entered in favor of the Respondent, Self Insurer, and against the Claimant, the costs of the appeal being assessed to the Respondent, Self Insurer, counsel for the Respondent to prepare a formal journal entry in accordance with the above.”
On receipt of the foregoing, counsel for respondent called the trial court’s attention to the fact its letter contained no date for termination of temporary total disability. The court responded it intended the time of Dr. Mueller’s last examination of claimant to be the termination date. Counsel for respondent then prepared a journal entry embodying the language contained in the trial court’s March 16, 1973, letter and stating the following:
“6. That claimant was temporarily disabled from performing his labor because of the muscle strain he received by reason of the personal injury on August 27, 1971, but that the period of maximum medical convalescence was reached by the claimant on April 8, 1973.
“7. That the claimant has sustained no residual disability as a result of the accident of August 27, 1971.
“It is therefore by the court considered, ordered, adjudged and decreed that the claimant, Milton Boyd, III, be and is awarded compensation against the respondent and self-insurer, Yellow Freight Systems, Inc., for temporary total compensation at the rate of $56.00 per week from the date of the accident, August 27, 1971, to April 8, 1972, which is a period of 32 weeks and one day for a total of $1,800.00 less compensation previously paid.” (Underlining supplied.)
Over claimant’s objection the trial court signed and entered the foregoing journal entry on March 27, 1973. Thereafter it was noticed this instrument contained two errors in that the date of Dr. Mueller’s last examination was April 12, 1972, instead of April 8, 1973, as stated in finding No. 6. Respondent filed a motion for nunc pro tunc order correcting the date of termination of temporary disability which the trial court, again over claimant’s objection, allowed.
Claimant raises both procedural and substantive issues upon appeal. He first asserts respondent’s appeal from the director to the district court should have been dismissed because its bond was not filed with the clerk of that court within twenty days from the date of the director’s award and because the clerk failed to approve the bond. It should first be noted that the condition of the bond filed by a self-insurer under K. S. A. 44-556 is to stay payment of compensation until the appeal has been decided by the district court.
Claimant’s contention is the filing of bond is jurisdictional to perfection of the appeal and he cites certain language to that effect in Griffith v. State Highway Commission of Kansas, 203 Kan. 672, 456 P. 2d 21. However, in Kissick v. Salina Manufacturing Co., Inc., 204 Kan. 849, 466 P. 2d 344, we pointed out that the language in Griffith cited and relied on by claimant here was dicta and it was specifically disapproved. In Kissick we quoted approvingly from Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P. 2d 771, as follows:
“ ‘We hold, therefore, that all that is required of a party perfecting an appeal to the district court is the filing of his written notice of appeal with the director within the time prescribed. Furthermore, compliance with the 1961 amendments to the statute [K. S. A. 1969 Supp. 44-556] is not a jurisdictional requirement to the perfection of an appeal by an employer. . . . (p. 413.)’” (p. 855.)
Included in the 1961 amendments, referred to in the foregoing quotation, was the provision for the filing of a bond by a self-insurer (Laws, 1961, Ch. 243, §5).
We held in Kissick that failure on the part of an employer to make payment of the compensation required by 44-556 pending an appeal from the director’s award is not a jurisdictional prerequisite to the perfection and maintenance of an appeal, nor does it furnish valid grounds for dismissal of the appeal, (syl. ¶ 4). It follows that failure on the part of an employer self-insurer to file a bond for payment of compensation pending such an appeal is not a jurisdictional prerequisite to the perfection and maintenance of the appeal. Moreover, here a bond in sufficient amount to cover the award made by the director was actually filed upon the same day the appeal was docketed in the district court.
That which has been said disposes of claimant’s further contention that respondent’s appeal should have been dismissed for failure of the court clerk to approve the bond which was filed. Reyond this, were such approval requisite to the validity of a bond the statute prescribes no particular form it should take and acceptance and filing of a bond by the custodial official certainly raises an implication of approval by that officer (see 72 CJS, Principal and Surety, § 57 b.). The trial court properly denied claimant’s motion to dismiss the appeal.
Claimant next contends the trial court had no authority to alter or amend the judgment reflected in its March 16, 1973, letter by the execution of its formal journal entry signed and filed March 27, 1973. He argues the trial court in its letter adopted the director’s award of compensation for temporary total disability and claimant is entitled to that award. It should first be noted the trial court did not adopt the director’s award of compensation. It merely adopted the statement of stipulations, issues and summary of evidence as contained in the examiner’s award. For his position of want of authority claimant cites and relies on Norcross v. Pickrell Drilling Co., 202 Kan. 524, 449 P. 2d 569. There a judgment awarding compensation was formally made and entered. Subsequently an effort was made under the guise of nunc pro tunc to change the period of time for which compensation was to be paid. This court held that an order nunc pro tunc cannot be used to alter a judgment actually rendered and further stated:
“An award which has been formally made and entered by the district court in a workmen’s compensation case may not thereafter be modified by such court, such judgment being final subject only to such modification as may be made by the director under section 44-528 or by this court upon appeal under IC. S. A. 44-556. . . .” (Syl. ¶ 2.)
In the case at bar the trial court stated its general conclusions in its March 16,1973, letter. This letter was never intended to, nor did it, constitute a formal journal entry of judgment — counsel for respondent was specifically directed to prepare such an instrument. Later it was noticed the court had failed to indicate the date claimant reached the period of “maximum convalescence”, a term which when taken in context with the other language used obviously referred to the termination date of claimant’s temporary total disability. The trial court supplied that date and formal judgment was entered and filed March 27, 1973. This action was in accord with K. S. A. 60-258 (b) which provides:
“. . . If the judge directs that the form of the judgment is to be settled by a journal entry or other document, it shall be prepared in accordance with the directions of the judge who shall then sign the same and cause it to be filed with the clerk. Such filing shall constitute the entry of the judgment, and it shall not be effective before such filing. . . .”
Insertion of the date of termination of temporary total disability did not alter a judgment previously entered as in Norcross.
The next action taken was to correct the typographical error of April 8, 1973, contained in the formal journal entry. The record clearly reveals the date intended was April 12, 1972, the date of Dr. Muellers last examination of claimant. In Tafarella v. Hand, 185 Kan. 613, 347 P. 2d 356, this comb stated [citations omitted]:
“A judgment is one thing. The record of a judgment is a different thing, and what purports to be a record of a judgment may or may not be correct. If not correct, the settled rule is that the trial court not only has the right but is under a duty to make the judgment rolls speak the truth. Such a right is inherent in the court and is not dependent for its existence upon any statute. No act of the parties, such as approval of an incorrect journal entry, can prevent the court from making such a correction nor is such power lost by the lapse of time. Hence such correction can be made at any time, notwithstanding the expiration of the term. This power can be exercised on the court’s own motion, and it is therefore immaterial how the defect is brought to the court’s attention. The correction may be made upon any satisfactory evidence and it is sufficient if it be based upon the personal knowledge and recollection of the judge.” (pp. 617-618.)
The correction here was properly made by nunc pro tunc order upon discovery of the error.
Claimant’s remaining contentions of error essentially challenge the sufficiency of the evidence to sustain the trial comb’s findings and award. Although claimant asserts otherwise, the medical testimony as to his disability was disputed.
The existence, extent and duration of an injured workman’s incapacity is a question of fact for the trial court to determine (Howerton v. Goodyear Tire & Rubber Co., 191 Kan. 449, 381 P. 2d 365). In Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108, this general rule is stated:
“Under K. S. A. 44-556, the appellate jurisdiction of this court in workmen’s compensation cases is limited to reviewing questions of law only. Whether the district court’s judgment in a compensation case is supported by substantial competent evidence is a question of law as distinguished from a question of fact. [Citations] In reviewing the record to determine whether it contains substantial evidence to support the district court’s factual findings, this court is required to review all of the evidence in the light most favorable to the prevailing party below. Where the findings of fact made by the district court are based on substantial evidence, they are conclusive, and we have no power to weigh the evidence and revise those findings or reverse the final order of the court. Although this court may feel the weight of the evidence, as a whole, is against the findings of fact so made, it may not disturb those findings if they are supported by substantial competent evidence.” (pp. 778-779.)
Despite his congenital back defect claimant here had worked for respondent three years without mishap. Before that he had for a period of years been engaged in heavy labor for other employers and had had no back trouble. Under all the testimony the fact finder actually had three choices: It could accept the testimony of claimant and Dr. Basham (not all of which has been stated) and enter a continuing award for total disability; it could accept that of Dr. Overesch and find that claimant could have returned to work November 22, 1971; or it could accept the opinion of Dr. Mueller that there was no disability as of April 12, 1972. It chose the latter and that determines the issue.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal proceeding in which the defendant-appellant, William Joseph Colin, was convicted of murder in the first degree. The trial court sentenced the defendant to life imprisonment. The facts in the case are not greatly in dispute and are as follows: On September 17, 1971, Annette Comstock, a retired elderly school teacher, was found dead at her home in Kansas City, Kansas. She had been strangled to death after being robbed of cash and other personal belongings. After investigation the police found that subsequent to the murder a $400 check had been cashed on Miss Comstock’s bank account. They obtained a description of the party who cashed the check as well as his name and the number of his driver’s license. The finger of guilt pointed directly at the defendant, William Joseph Colin. On September 20, 1971, police officers went to the residence of the defendant’s common-law wife, Donna Lasiter Colin. When the police officers first arrived they observed in the driveway a 1953 Chevrolet which matched the description of an automobile parked in front of the victim’s house on the day of the murder. Shortly thereafter Donna Lasiter Colin arrived home and was taken by the officers to police headquarters. The 1953 Chevrolet was taken into custody and towed to the police station. At the police station Donna Lasiter Colin signed a waiver of search form consenting for the police to search the 1953 Chevrolet. The search produced an electric cord and plug which had been taken from the home of the victim^ Annette Comstock.
At the police station Mrs. Colin advised the police that the defendant had boarded a bus that very day and was enroute to California. The Kansas City police then telephoned the sheriff’s office in Colby, Kansas, requesting the sheriff to apprehend the defendant when the bus arrived in Colby. At 11:20 p. m. on September 20 the sheriff at Colby arrested the defendant, Colin, and placed him in the county jail. At 7 o’ clock a. m. on the morning of September 21 three Kansas City police officers arrived in Colby with instructions to return Colin to Kansas City. At the time Colin was arrested in Colby he had in his possession a handbag which contained some personal belongings as: well as a set of keys and a red purse belonging to the victim. The handbag was examined by the Colby sheriff’s office and also by the Kansas City detectives and the contents were inventoried. It is undisputed that the defendant was advised of his constitutional rights by means of the Miranda warning when he first encountered the Kansas City detectives at the Colby jail. The defendant stated that he wanted to talk to an attorney before he made any statement. No further interrogation was conducted by the police officers. The only conversation between the police officers and the defendant concerned the contents of the defendant’s handbag which the defendant identified. He identified the red purse as belonging to Annette Comstock. The Kansas City officers then proceeded to return the defendant to Kansas City in their automobile. During the trip they stopped at Salina to have lunch. According to the police officers after they and the defendant had sat down' at a table in a restaurant, the defendant volunteered the question as to what was the penalty for murder. Officer Supica advised him that it would depend on what sentence the judge thought was appropriate under the circumstances. According to the police officers the defendant volunteered that it did not make much difference and tifien stated to the officers that he had committed the murder of Annette Comstock.
The defendant testified that he did not volunteer the information but made the statement as a result of being interrogated by Officer Supica. The defendant made no further statement in Salina and the party proceeded to Kansas City. Upon their arrival the defendant was immediately taken to police headquarters where he was again given the Miranda warning and was also advised of his rights in regard to participation in a lineup. Magistrate Judge Smith appointed an attorney, Robert Feiring, to represent the defendant. Robert Feiring consulted with William Colin and also with Mrs. Colin at the police station. At the conclusion of this private conversation, Robert Feiring advised the police officers that the defendant wanted to confess and tell the truth and that he would sign a lineup waiver form. The defendant then signed a lineup waiver form. He also signed a form acknowledging that he had been advised of his constitutional rights as required by Miranda and stating that he desired to make a statement. Immediately thereafter the defendant participated in the lineup where he was identified by several witnesses. He then proceeded to make a statement in which he confessed to the commission of the murder. In due time the defendant was tried to a jury and convicted of murder in the first degree. Defendant’s motion for a new trial was overruled and he has appealed to this court.
Prior to trial the defendant filed a motion to suppress his oral and written statements made during the course of the trip to Kansas City and later at the Kansas City police headquarters. Defendant contended that these statements were coerced and involuntarily given and that he did not intelligently waive his constitutional rights. In State v. Creekmore, 208 Kan. 933, 495 P. 2d 96, we stated that the essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Generally if the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary. We further held that when the trial court conducts a full preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence. Here the trial court conducted a full preliminary inquiry on the question of the admissibility of the defendant’s statements. The record discloses that all three of the Kansas City police officers testified that the defendant first instituted the conversation by asking what the penalty for murder was and then proceeded to state to the officers that he was the one who killed Annette Comstock. All three officers further testified that there was no interrogation on their part and that the statement given by the defendant was voluntary. It is important to note that when the defendant testified he did not deny making the statement and never once said that he was interrogated while he was having lunch at Salina. It seems clear to us that there was substantial competent evidence to support the trial court’s finding that the defendant’s oral statement made at the Salina restaurant was voluntary and not the result of an in custody interrogation. The record further shows that the written statement made by the defendant at the Kansas City police headquarters was obtained after the defendant was given a full opportunity to consult with his counsel, Robert Feiring. In view of the record before us we find that the defendant’s constitutional rights were protected and that any incriminating statements that he made were voluntary and admissible.
The defendant’s second point on this appeal is that the incriminating evidence found in the 1953 Chevrolet was not admissible because it was the product of an illegal search in violation of the defendant’s constitutional rights. The trial court conducted a hearing on the question of whether or not to suppress the evidence obtained from the search of the 1953 Chevrolet and held that the search was valid and that the evidence was admissible. The evidence presented to the trial court was somewhat in conflict. According to the police officers when they went to Donna Lasiter Colin’s home on September 20 and discovered the 1953 Chevrolet parked in the driveway, they shined their flashlights on the inside through the glass windows. They further testified that the 1953 Chevrolet answered the description of a vehicle observed at the victim’s home on the day of tire murder. The 1953 Chevrolet was towed to police headquarters where a waiver of search form was signed by Mrs. Colin. Mrs. Colin testified that she observed the police officers searching the vehicle at her place of residence when she returned home and was taken into custody and further stated that she signed the waiver of search form because of threats from the police officers. Mrs. Colin does not deny that she signed the waiver of search form and that the search of the 1953 Chevrolet was thereafter conducted at the police station where the incriminating evidence was found in the vehicle. From the record we find that there is substantial competent evidence to support the findings of the trial court that the search of the vehicle was conducted after Mrs. Cohn had given her written consent for the search and that such consent was voluntary. Under the circumstances we cannot say that there were constitutional infirmities in the search of the 1953 Chevrolet or that the trial court erred in admitting the incriminating articles into evidence.
The defendant’s third point is that the trial court erred in admitting into evidence the victim’s keys and purse which were disclosed in the search of his handbag in Colby. The arrest in Colby occurred on the bus and the defendant’s handbag was immediately taken into custody by the sheriff. The appellant argues that since he was incarcerated he was unable to destroy any evidence and that he could neither harm himself or the officers while he was in jail. Hence the defendant contends that there was no need to search his handbag without first obtaining a search warrant. We cannot agree that the search of the defendant’s handbag was constitutionally impermissible under the circumstances. In the first place the arresting officer in Colby had been informed by Kansas City police officers that the defendant was wanted for murder in Kansas City and that he was to arrest the defendant when the bus arrived in Colby. Since the defendant was arrested on a charge of first-degree murder, the officer had probable cause to believe that items in the possession of the defendant could well be the fruits or evidence of the crime and thus subject to seizure incidental to a lawful arrest. Furthermore, the search of defendant’s handbag can be justified on the basis of a jailhouse inventory necessary both to preserve the property of the accused while he is in jail and to forestall the possibility that the accused may later claim that some item has not been returned to him. (State v. Undorf, 210 Kan. 1, 499 P. 2d 1105.)
As his fourth point the defendant takes the position that the trial court erred in denying him a change of venue. The defendant sought a change of venue because of publicity the case had received in local newspapers, television and radio broadcasts, and the True Detective Magazine, which is sold in Wyandotte county. In his motion the defendant further alleged that the victim, Miss Comstock, was well-known and an active community worker. The defendant failed to present any affirmative evidence, whatsoever that prejudice in the community existed. There is nothing in the record to show that there was difficulty in selecting a jury or that any of the members of the jury panel had ever heard of the case prior to the trial. The allowance or refusal of an application for change of venue in a criminal proceeding rests largely in the discretion of the trial court. (State v. Anderson, 202 Kan. 52, 446 P. 2d 844.) A trial court, may in its discretion properly deny a motion to change venue, when the defendant in a criminal action fails to present affirmative evidence that prejudice exists so as to make it reasonably certain that he cannot obtain a fair trial. (State v. Lamb, 209 Kan. 453, 497 P. 2d 275.) On the record before us here we cannot say that the trial court abused its discretion in denying die defendant’s motion for a change of venue.
Finally the defendant contends that the lineup evidence should not have been admitted because photographs of the defendant were shown to prospective witnesses prior to the lineup identification. We agree with the defendant that under such circumstances it is always necessary to scrutinize any pretrial confrontation between a person suspected of committing a crime and identifying witnesses. The due process clause of the Fifth and Fourteenth Amendments to the United States Constitution forbids a lineup that is unnecessarily suggestive or conducive to irreparable mistaken identification. This rule applies even though the person suspected of committing a crime has no constitutional right to counsel. (State v. McCollum, 211 Kan. 631, 507 P. 2d 196.) Here the defendant filed a motion to suppress the lineup identification and a hearing was held thereon prior to trial. The trial court found that the lineup was not improper and therefore testimony concerning the identification of the appellant at the lineup could be presented to the jury at the trial. After examining the record before us we are unable to say that the trial court abused its discretion in overruling the defendant’s motion to suppress the lineup identification. All of the witnesses testified without contradiction that no one suggested to them in any way whom they should identify. The teller of the bank where the defendant cashed the victim’s check, testified that the defendant was directly in front of her for two or three minutes and that he was no more than two feet away from her and that she got a good look at his face. The lineup was conducted after the defendant had consulted with his appointed counsel, Robert Feiring, and after he had signed a written consent to the lineup. We cannot say that under the totality of circumstances here the lineup identification was so unnecessarily suggestive as to give rise to a substantial likelihood of misidentification.
For the reasons set forth above the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
At issue here is the validity of Ordinance No. 13213 of the city of Topeka annexing the Rolling Meadows Sub division located west of Shawnee Lake and southeast of Topeka. Jayhawk Construction Co., Inc. (Jayhawk) filed the petition and plat which covered 22 acres adjoining the corporate limits of Topeka on the east.
Another platted residential development in Shawnee County, Lake Shore Estates, lies between Rolling Meadows and Shawnee Lake. Rolling Meadows, a class “R” subdivision, is being developed for houses in the $16,500 to $22,000 price range on lots with frontages of 65 feet. Lake Shore Estates was developed for houses in the $22,000 to $50,000 price range on lots with frontages of 100 feet. The householders in the surrounding area are afraid the lower cost housing development will cheapen their present holdings, and therein lies the present controversy.
Mr. Sabatini, a householder in the adjoining neighborhood, initiated the present action to permanently enjoin the city from approving the plat and annexing the 22 acres. The city answered, denying that the annexation proceeding was unlawful and questioning Mr. Sabatinfis standing to sue. Jayhawk answered, supporting the position of the city. Lake Shore Country Club, Inc., whose stockholders five in Lake Shore Estates and the surrounding area, was permitted to intervene and it adopted the allegations and prayer of Mr. Sabatini’s petition. The final battle lines were drawn when the district attorney of Shawnee County was permitted to intervene on behalf of the state of Kansas. He filed an “ex rel.” petition questioning the legality of the annexation proceedings. Thereupon the “standing to sue” question raised by the city and Jayhawk evaporated from the lawsuit.
Various depositions were taken and filed in the case, along with copies of the annexation proceedings, maps of the area, the plat, the ordinance, affidavits, letters, a contract and a deed. The city and Jayhawk filed motions for summary judgment on the ground there was no genuine issue of material fact and they were entitled to judgment as a matter of law.
The motions were briefed and argued, and the court sustained the motions. The court found that the annexation proceeding was lawful and that the court had no legal authority to inquire into the reasonableness of the action taken by the city in annexing and platting the land. Mr. Sabatini, Lake Shore Country Club, Inc., and the district attorney have appealed and we will refer to them collectively as the appellants.
We will address ourselves to the two points argued in appellants’ brief. All other points listed in the formal statement are declared abandoned (Intercontinental Leasing, Inc. v. Lehr, 209 Kan. 132, 137, 495 P. 2d 900.). Appellants attack the validity of the annexing ordinance because the petition for annexation was filed by Jayhawk before it had acquired a deed to the 22 acres.
The statute authorizing annexation in this case, K. S. A. 1973 Supp. 12-520, reads in pertinent part as follows:
“The governing body of any city may by ordinance annex land to such city if any one or more of the following conditions exist:
“(g) The land adjoins the city and a written petition for or consent to annexation is filed with the city by the owner.”
An ordinance of the city of Topeka, No. 30-3411, which appears to be patterned after the statute, provides:
“(e) In those class ‘B’ subdivisions which touch or adjoin the corporate limits of the City or touch or adjoin an area on which annexation proceedings have been commenced then the owner shall submit a written consent to annexation of the subdivision to the city along with his preliminary plat.”
A summary of the pertinent dates and events agreed upon by the parties is as follows:
July 29, 1971
Jayhawk entered into a purchase contract with Harold and Carleene Schroeder;
September 16, 1971
Jayhawk filed a pre-application plat for consideration of the city planning commission;
September 22, 1971
The city planning commission adopted a platting procedure;
September 30, 1971
Jayhawk filed the preliminary plat;
October 4, 1971
Jayhawk filed the petition for annexation;
October 15, 1971
A public hearing was held before the planning commission on the question of the annexation and platting of the 22 acres;
December 17, 1971
The deed to Jayhawk was filed of record;
January 21, 1972
A public hearing before the planning commission was held and the proposed annexation and platting received approval;
February 8, 1972
A public hearing was held before the city commission and the final plat was approved;
February 15, 1972
The plat as approved was recorded;
February 22, 1972
A public hearing was held before the city commission on the question of annexation;
February 23, 1972
A letter of the former owner consenting to the annexation was filed with the city commission;
February 29, 1972
The annexation ordinance received final approval and was adopted by the city commission.
The appellants first point is directed toward the sufficiency of the petition for annexation. They argue that K. S. A. 1973 Supp. 12-519 (c) defines owner as one who has record title to the land, and that K. S. A. 1973 Supp. 12-520 (g) requires the written petition for annexation to be filed by the owner. Since Jayhawk did not hold record title at the time the petition was filed, appellants contend the petition and all subsequent proceedings thereon were defective and void.
Appellees, on the other hand point out that 12-520 (g) provides in the alternative for a “consent to annexation ... by the owner.” They point to the contract of purchase where the owners of the land agreed “to do any and all such things necessary on their part to aid the Purchaser in such platting.” They show that the owners did consent to the annexation petition by letter before any final action was taken by the city. They point out further that at the time the annexation ordinance was adopted Jayhawk had become the owner of record title by deed from the Schroeders.
Under the circumstances outlined by appellees we believe there was substantial compliance with the statute. The purpose of the requirement in the statute is to protect the rights of the owner against unilateral action by a city in annexing the owner s land. Under this section consent of the owner is required and may be established by having him file a petition or he may consent thereto. Both the purchaser and the record owner sought annexation in this case. They cooperated throughout the proceedings and when final action was taken the petitioner was the record owner of the property and had on file with the city the written consent from the former owner.
It is argued that the provisions of the statute, 12-520 (g), are jurisdictional and must be complied with before the city has the legislative authority to begin any proceedings for the annexation. We cannot agree. Under several of the conditions for annexation specified in the statute a petition by or with the consent of the owner is not required. The city may initiate the proceedings on its own under certain conditions listed in the statute.
Substantial compliance is all that is required. Substantial compliance requires compliance in respect to the essential matters necessary to assure every reasonable objective of the statute. (City of Kansas City v. Board of County Commissioners, 213 Kan. 777, 518 P. 2d 403.) The reasonable objective of the statute was met in this case when the purchaser under the contract filed its petition and the record title owner thereafter consented to annexation. The subsequent deed to the purchaser was filed of record before the annexation ordinance was finally adopted.
The conditions for annexation provided in K. S. A. 1973 Supp. 12-520 (g) must be substantially complied with and a petition for annexation filed by a purchaser under contract followed by a written consent filed by the sellers substantially complies with every reasonable objective of the statute.
Ordinance No. 13213 of the city of Topeka annexing Rolling Meadows Subdivision was validly enacted under proper statutory authority granted in K. S. A. 1973 Supp. 12-520 (g) and the petition for annexation filed was not jurisdictionally defective for the reasons discussed in this opinion.
Now for the second point, the appellants contend they have a right to contest the reasonableness of the platting and annexation under authority granted in K. S. A. 12-712 and that the district court erred in ruling otherwise. The statute provides:
“That any ordinance or regulation provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance or regulation determined by bringing an action, in the district court of the county in which such city is situated, against the governing body of said city.” (Emphasis added.)
This statute, which is relied on by appellants, was O’-iginallt passed as Section 7 of Chapter 100 of the Laws of 1921 relating to zoning. The original act has continued down through the years, with certain amendments not of present concern, until it now appears as K. S. A. 12-707 through 12-714. These are zoning laws under which the city may by ordinance divide the city into zones or districts and regulate and restrict the location and use of buildings and the uses of the land within each district or zone. The review of administrative proceedings provided in K. S. A. 12-712 relates to zoning ordinances and regulations and does not apply to the annexation and platting of land.
The appellants rely on Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513, and Hudson Oil Co. v. City of Wichita, 193 Kan. 623, 396 P. 2d 271, as authority for maintaining the action under K. S. A. 12-712. Both of these cases were zoning cases and are not authority for testing in court the reasonableness of annexation and platting of land.
Appellants seek to tie the remedy provided in K. S. A. 12-712 to K. S. A. 1973 Supp. 12-705, 12-705a, 12-705b and 12-705c. These latter statutes relate to the platting and subdivision of land. They were first enacted by separate act as Chapter 99 of the Laws of 1921 for the purpose of creating city planning commissions.
The “act” referred to in K. S. A. 12-712 is restricted to Chapter 100 of the Laws of 1921 relating to zoning and does not include Chapter 99 of the Laws of 1921. The present controversy is not over zoning. All property in the present case was zoned for residential purposes long before the present proceedings were initiated and no change in zoning was sought.
The platting and annexation of land by municipal corporations are legislative functions since municipal corporations are creatures of the legislature exercising only such powers of existence and extension of boundaries as are conferred by the law plus those necessary to make the conferred powers effective. See State, ex rel., v. City of Overland Park, 192 Kan. 654, Syl. ¶¶ 1, 2, 391 P. 2d 128. In the latter case it is held:
“The wisdom, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts. The basic function and duty of the courts is to determine whether a city has statutory authority and whether it has acted thereunder in passing an annexation ordinance.” (Syl. ¶ 3.)
It is not a proper judicial function for a court to inquire into the reasonableness, wisdom, necessity or advisability of annexing and platting land. In this area of legislative function the judicial duty of the courts is limited to the determination of whether the city was granted the necessary statutory authority to act and, if so, whether it acted within that authority.
It has been repeatedly held that an action challenging the validity of a city annexation ordinance can be prosecuted only by the state acting through one of its proper officers, such as a county attorney, district attorney or the attorney general. See State, ex rel., v. City of Overland Park, supra, and Babcock v. City of Kansas City, 197 Kan. 610, 419 P. 2d 882. The vehicle generally used for such purpose is a proceeding in quo warranto. See State, ex rel., v. City of Topeka, 173 Kan. 387, 246 P. 2d 250; State, ex rel., v. City of Topeka, 175 Kan. 488, 264 P. 2d 901; State, ex rel., v. City of Kansas City, 181 Kan. 870, 317 P. 2d 806; and Babcock v. City of Kansas City, supra. However, even this remedy does not permit a court to question the reasonableness, wisdom, necessity or advisability of platting and annexing land. (See Quo Warranto, Jurisdiction and grounds, K. S. A. 60-1202.)
In conclusion we wish to point out that we have not overlooked our decision in Burke & McCaffrey, Inc. v. City of Merriam, 198 Kan. 325, 424 P. 2d 483, where the reasonableness of the action of die governing body of the city of Merriam in refusing to approve a proposed plat of a subdivision was considered. In that case the lower court ruled there was no evidence of unreasonable or arbitrary action and this court on appeal affirmed the lower courts decision. We have reviewed the record and briefs filed in that case and no question was presented to the trial court or to this court questioning the remedy pursued or the judicial function of the court in deciding the issue of reasonableness. Therefore, the case should not be considered as authority for reaching these issues in any similar action where such questions are raised.
In summary we hold the ordinance annexing Rolling Meadows Subdivision was validly enacted under proper statutory authority and the district court did not err in holding it is not a proper judicial function for a court to inquire into the reasonableness, wisdom, necessity or advisability of platting and annexing land. Accordingly the judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
These three consolidated cases involve the question of claimants’ eligibility for benefits under the employment security law (K. S. A. 44-701, et seq.). The Goodyear Tire & Rubber Company (employer) has appealed from a decision of the Shawnee county district court affirming orders by the Employment Security Board of Review that claimants (employees) were eligible for bene fits for one or both weeks ending August 19 and 26, 1967, during which time the Goodyear plant was partially shut down.
Under the provisions of a collective bargaining agreement between the company and claimants’ union, Goodyear had effected a partial shutdown of its plant for vacation purposes for the two weeks’ period in question. During the period work was available for certain employees of high seniority, but not for the claimants herein.
The pertinent portions of the bargaining agreement relating to vacations are as follows:
“Section 1. Eligibility
“(a) Employees will be entitled to one week’s vacation with pay after completing one year of continuous service. Employees will be entitled to two weeks’ vacation with pay after completing three years’ service. . . .
“(b) The vacation period shall be on a calendar basis from January 1 to December 31st inclusive. . . .
“(h) An employee may defer his vacation until the following vacation period but no longer, by making arrangements with the Employer.
“The Employer will make a reasonable effort consistent with production requirements to schedule vacations at times suitable to the employees and to give those employees entitled to two or more weeks vacation the two or more weeks consecutively if they so desire.
“(h) (1) If the Employer anticipates a vacation shutdown or shutdowns a notice of intent will be posted no later than March 1.
“(2) The Employer will contact employees for vacation scheduling by May 1st.
“(3) The Employer may shut down all or a part of the plant for the specific purpose of scheduling vacations during June, July and August. When total or partial shutdowns for vacations are scheduled such shutdowns will be for two consecutive weeks. Full plant shutdown for vacation shall be limited to one per year or partial plant shutdowns for vacations shall be limited to two per year.
“(4) Employees eligible for vacations prior to the shutdown period or periods shall be required to take two weeks of the vacation to which they are eligible during one of the shutdown periods. An exception to this will be employees who elect to defer all or part of their vacation to the next year or have scheduled their vacations some other time during the vacation period defined in paragraph (b) of this section. In these events, such employees will be considered on a leave of absence during one shutdown period if no work is made available to them. During the other shutdown period if no work is made available to them, such employees will be considered on layoff.
“(5) Employees who may have taken their vacations earlier in the year due to emergency or for exceptional valid reasons and employees who are ineligible for vacations during the shutdown periods will be considered on layoff if no work is made available to them.
Section 2. Pay for Vacations
“(a) Vacations will be paid at the rate of 2% of the previous calendar year’s earnings for each week of vacation to which the employee is entitled.” (Emphasis added.)
In a separate article of the agreement entitled “Seniority,” provision is made that a laid-off employee will be eligible for recall. In respect to leaves of absence, the provision states that those of a short duration may be negotiated on a “local basis,” and may also be granted for personal reasons, when justified, for a period not to exceed ninety days. In any case, seniority continues to accumulate for the duration of approved leaves of absence.
The parties agree that under the terms of the collective bargaining agreement employees were not compelled to take their vacations during the shutdown period but could take them at other times during the year, or could defer them until the following year, at the employees’ option.
The facts are not in controversy. The claimant in each of the first two cases was entitled to at least two weeks’ vacation with pay under the terms of the agreement. They chose to take only one week of their paid vacation during the shutdown (the week ending August 19, 1967). As to each of these claimants, the examiner, referee, board of review, and district court concluded that for the week ending August 19 claimants were on vacation and receiving vacation pay and, therefore, were ineligible for unemployment benefits; but they were unemployed and eligible for benefits for the last week of the shutdown period ending August 26.
The thirty-eight claimants in the third case, some of whom were entitled to one week’s vacation with pay, and some to two or more weeks, elected not to take any portion of their vacations during the two-week shutdown period, but rather to take them at some other time during the year, or defer them until the following year. As to these claimants, the administrative authorities, including the board of review, and the district court concluded they were eligible for unemployment benefits for both weeks of the shutdown period.
Pursuant to K. S. A. 44-709 (c) [Am. L. 1970], the referee conducted a hearing in each of the cases, after which he filed a lengthy memorandum opinion setting forth his findings of fact (about which there is no dispute) and decision. The various contentions of both the claimants and Goodyear were examined in light of the terms of the bargaining agreement and the employment security law. As the referee viewed the agreement, there was nothing in it which prevented an employee from requesting such vacation as he was entitled to for any period during the year, and if approved by the employer, to be a binding election. The referee, in effect, concluded that in applying the law, he must look to the actual status of the claimant when he claims eligibility for benefits, irrespective of the terms “leave of absence” and so forth used in the agreement; and that each of the claimants was “unemployed” within the meaning of K. S. A. 44-703 (m) [Am. L. 1970] for those weeks during the shutdown period when he did not receive vacation pay. Upon appeal by the employer (K. S. A. 44-709 [e] [Am. L. 1970]) the Employment Security Board of Review adopted the referees findings and conclusions, just as did the district court when Goodyear unsuccessfully sought judicial review (K. S. A. 44-709 [h] [Am. L. 1970]) of the board’s decision. The appeal to this court by Goodyear followed.
The question for determination is whether the claimants are eligible for unemployment benefits for the week(s) during the two-week shutdown period, when they elected to take at some other period of time all or part of their paid vacations to which they were entitled under the bargaining agreement.
Goodyear contends that since the claimants, by their own choice, elected to take their paid vacations at a time other than during the vacation shutdown period, they were to be considered on a “leave of absence” status according to the labor-management contract and, therefore, were not eligible for benefits under the employment security law. At the same time they acknowledge that employees, if on a “layoff” status, such as those who were ineligible for vacation during the shutdown (subparagraph [h] [5] of the contract), would be eligible for benefits.
Claimants and the board of review take a contrary position and contend that no work was available or wages payable to claimants during the period of shutdown, and thus, they were “unemployed,” as defined by K. S. A. 44-703 (m), and eligible for benefits. The pertinent terms of that statute are:
“. . . An individual shall be deemed 'unemployed' with respect to any week during which he performs no services and with respect to which no wages are payable to him. . .
The collective bargaining agreement between Goodyear and the union constituted the employment contract between the company and its employees. Incorporated as a part of the agreement were provisions relating to vacation rights — both as to when employees became eligible for vacations with pay, and the time that such vacations would be taken. The company reserved unto itself the right to shut down all or part of its plant for two weeks for the specific purpose of vacations. At the same time the company agreed to make a reasonable effort “consistent with production requirements to schedule vacations at times suitable to the employees.” Employees eligible for vacations prior to the shutdown period were required to take two weeks of the vacation to which they were entitled during the shutdown, except for those employees who elected to defer all or part of their vacation to the following year, or had scheduled their vacation for some other time during the vacation period, in which case they were to be considered on a “leave of absence.” Provision was also made when employees would be considered on “layoff” during a second partial shutdown period during the vacation year.
No contention is made by either side that the company or the employees have violated the terms of this agreement in any respect. It is generally agreed that insofar as the contract is concerned, claimants had the right to take their vacations when they did. The company’s complaint undoubtedly stems from the fact that by the employees being found eligible for unemployment benefits for the shutdown period, the company’s experience rating is being charged accordingly. (K. S. A. 44-710a [Am. L. 1970].)
In light of the terms of employment, as defined by the collective bargaining agreement, were claimants, under the uncontroverted facts, eligible for benefits? Determination of the question lies within the provisions of the employment security act, with the person claiming benefits thereunder being entitled to a liberal interpretation of the law. (Pickman v. Weltmer, 191 Kan. 543, 382 P. 2d 298; Southwestern Bell Telephone Co. v. Employment Security Board of Review, 189 Kan. 600, 371 P. 2d 134, 93 A. L. R. 2d 1312; Erickson v. General Motors Corporation, 177 Kan. 90, 276 P. 2d 376.)
The condition precedent for eligibility under the law is that a claimant be “unemployed.” He is deemed unemployed with respect to any week during which (1) he performs no services, and (2) no wages are payable to him. (K. S. A. 44-703 [m].) Clearly, the claimants here performed no services during the two weeks of the plant shutdown. As a result of their choosing to postpone all or part of their paid vacations to another time of the vacation year, or the following year, no wages were payable to them. (We note that no attempt is made to allocate vacation pay to the specific weeks of the shutdown period, which in some jurisdictions has been a pivotal point in determining eligibility [Anno. 30 A. L. R. 2d 366 §2].)
In a literal sense, both parts of the statutory condition for an employee to be deemed “unemployed” existed as to the claimants in these cases. The second part of the condition — no wages being payable — came about because of claimants’ voluntarily electing not to take all or part of their entitled vacations with pay during the shutdown period. While under the bargaining contract claimants had a perfect right to make such an election, they also agreed under its specific terms to be considered on a “leave of absence” status, a situation which the board of review and district court, in effect, ignored. Claimants’ unemployment in this factual context was voluntarily created and consented to, and must be regarded as beyond the spirit and purview of our act.
The declared public policy of this.state, as expressed in the act itself, is protection against involuntary unemployment. (K. S. A. 44-702.) In further amplification of the purpose of the act, this court, in Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P. 2d 856, said:
“. . . the basic concept of the act . . . is, to provide benefits for those who are unemployed through no fault of their own and who are willing, anxious and ready to support themselves and their families, and who are unemployed because of conditions over which they have no control-, (Emphasis added.) (p. 698.)
As a part of their agreement with Goodyear, claimants agreed to the shutdown period. They also agreed that if they elected to postpone or defer their paid vacation to another time, they would be considered on a leave of absence during the shutdown. The term “leave of absence” contemplates some voluntary act on the part of the employee. (See, Jones v. Metropolitan Life Ins. Co., 156 Pa. Super. 156, 39 A. 2d 721.) Under such circumstances the shutdown can well be equated to a vacation or absence without pay voluntarily consented to by the claimants as part of the collective bargaining agreement. By the provisions of the contract, if claimants elected to take their paid vacation at other than during the vacation shutdown, they agreed, in effect, to withdraw themselves temporarily from the labor force and become voluntarily unemployed. (See, In re Chichipas, 3 A. D. 2d 880, 161 N.Y.S. 2d 362.)
This agreement is not one to waive rights to benefits to which an employee otherwise would be entitled; rather, it is one whereby the employees agreed to a voluntary absence from work if they chose to exercise that right. Such an agreement cannot be interpreted to mean an agreement to waive, release or commute benefits as prohibited by the employment security act. (K. S. A. 44-718; Jackson v. Minneapolis-Honey well Regulator Co., 234 Minn. 52, 47 N. W. 2d 449.)
With respect to vacation pay, Goodyear stood ready and willing to pay all eligible employees during the partial shutdown of the plant, and was obligated to do so under the terms of the bargaining agreement. Claimants, however, elected to exercise their right under the agreement to assume a status of voluntary unemployment and, thus, did not become unemployed because of conditions over which they had no control within the contemplation of our act.
The manner in which the terms “leave of absence” and “layoff” are used in the collective bargaining agreement clearly indicates that the parties intended a separate and distinct connotation to be given to each of the phrases.
“Leave of absence” is not a complete separation from employment, although it implies some voluntary act on the part of the employee. It denotes a continuity of the employment status — a temporary absence from duty, with intention to return — during which time performance of the duties of his work by the employee and remuneration by the employer are suspended. (See, Chenault v. Otis Engineering Corp., Tex. Civ. App., 423 S. W. 2d 377; Black’s Law Dictionary [Rev. 4th Ed.] p. 1036.)
A “layoff” is looked on as at least a suspension of employment, and in some instances as termination thereof, at the will of the employer without prejudice to the worker being reemployed. (See, 56 C. J. S., Master and Servant § 29.) Certainly it implies no element of voluntariness on the part of the employee. In those situations where an employee is considered on “layoff” under the terms of the bargaining agreement, he is involuntarily unemployed if no work is made available to him.
Our research discloses a plethora of cases from other jurisdictions dealing with the right to unemployment compensation where there is a plant shutdown for vacation purposes. A review of these cases would be impracticable because of the differences in the terms of the collective bargaining agreements and the unemployment compensation statutes involved. Most of the cases on the subject deal with situations where employees had not worked for a sufficient time to be eligible for vacation pay when the plant was shut down for vacation purposes. (Annos. 8 A. L. R. 2d 433; 30 A. L. R. 2d 366.) Even in those instances there is respectable authority holding that employees who had no earned vacation time were bound by the collective bargaining agreement permitting a plant vacation shutdown and were not involuntarily unemployed, since they consented to the shutdown by the terms of the agreement. (Moen v. Director of the Division of Employment Security, 324 Mass. 246, 85 N. E. 2d 779, 8 A. L. R. 2d 429; Jackson v. Minneapolis-Honeywell Regulator Co., supra; Mattey v. Unemployment Compensation Board, 164 Pa. Super. 36, 63 A. 2d 429; In re Emp. of Buffelen Lbr. & Mfg. Co., 32 Wash. 2d 205, 201 P. 2d 194; Lynch Corp. v. Review Bd. of Ind. Empl. Sec. Div., 141 Ind. App. 694, 232 N. E. 2d 619.) The principles and reasoning found in many of these decisions are, we believe, of persuasive force.
In Jackson v. Minneapolis-Honeywell Regulator Co., supra, under statutes similar to ours, the employee was held to be voluntarily unemployed during the shutdown period and, therefore, not entitled to benefits. Although factually not in point, the reasoning applied is apropos. The court stated:
“. . . During the two weeks of the vacation shutdown, Jackson performed no services and received no wages. The wording of the act and the existing facts place him squarely within the class defined by the act during those two weeks. If nothing further appeared, it is evident that he would be entitled to unemployment benefits. He and his family were exposed to a ‘menace to . . . health, morals, and welfare,’ and there was a loss of the purchasing power which the act seeks to maintain. Thus, to that extent the facts meet all the specifications for qualification for receipt of unemployment compensation benefits. But those specifications indicating qualification for benefits would also have been met if Jackson had asked for a two-week layoff and the company had granted his request.
“The act was designed to meet only the evils which follow ‘involuntary unemployment,’ with benefits to be paid to persons unemployed through no fault of their own.’ It was not designed to take care of the same evils which might flow from voluntary unemployment.” (pp.56-57.)
In a like vein, the court, in Mattey v. Unemployment Compensation Board of Review, supra, said:
“It is true that during the vacation period claimant performed ‘no services,’ and with respect to which ‘no remuneration’ was paid or payable to him. To that extent he was ‘unemployed.’ . . . However, the relationship of employer and employe was not terminated, and there was no suspension of that relationship. . . . The vacation or the leave of absence which he enjoyed was by virtue of his agreement. The vacation provided by the agreement was a period of freedom from duty but not the end of employment; ‘vacation’ implies continued service. . . . The effect of the agreement is the same as if claimant had himself requested time off for a vacation, or other personal reason, and it had been granted by his employer. Such mutuality does not create a state of unemployment under the statute, which entitles claimant to unemployment compensation benefits. The situation was created by claimant’s duly selected bargaining agents; their acts were his acts; to the temporary cessation of work the employer and employe agreed. The circumstances afford no basis for the claim that he was unemployed within the meaning of the Unemployment Compensation Law. . . .” (pp. 39-40.)
The same rationale is found in Lynch Corp. v. Review Bd. of Ind. Empl. Sec. Div., supra, where employees who disregarded the company’s timely notice of a vacation shutdown chose to take their vacations at a time other than during the shutdown period. The court held, by virtue of their action the employees should not be permitted to receive an additional “two week vacation with pay, in the form of unemployment compensation,” since such a result would not be in harmony with the declared policy of the Indiana employment security act — to alleviate the hardships brought about by the loss of wages or income when an employee is involuntarily without employment. (Also, see, American Central Mfg. Corp. v. Review Board, 119 Ind. App. 430, 88 N. E. 2d 256.)
In addressing itself to the general subject of an employee’s right to unemployment compensation had he postponed his vacation (as claimants did here) to a time subsequent to the vacation period fixed by the company, the supreme court of Illinois, in Grobe v. Board of Review, 409 Ill. 576, 101 N. E. 2d 95, said:
“. . . any later vacation he [the employee] might have elected to take would have been voluntary unemployment on his part and would not have been compensable under the act.” (p. 582.)
Admittedly, this appeal presents a close question; but the majority of the court is of the opinion that the declared public policy stated in the employment security law itself compels the conclusion that the claimants were voluntarily unemployed and, therefore, are not eligible for benefits.
The judgment is reversed.
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The opinion of the court was delivered by
Fontron, J.:
This action was commenced by the three plaintiffs, John Stanley Kimple, Ernest I. Stahly and Larry A. Morris, to recover for personal injuries sustained while guests at The Roaring Sixties, a Wichita nightspot. The case was tried to a jury which awarded damages to each plaintiff in the sum of $6500. The defendant, Rill G. Foster, owner of the offending tavern, has appealed.
For the three victims, the evening of July 7, 1966, began innocently enough. The men met in the afternoon for a business conference, following which they had dinner together. About 9:00 p. m. they dropped into The Roaring Sixties, where they ordered a pitcher of beer. Soon thereafter the tavern exploded with a frenetic violence which more than matched the picturesque character of its name.
The record reflects that when the plaintiffs entered the tavern, a group of males was gathered around a table some distance away. These characters had been patronizing the tavern since afternoon, drinking beer, pyramiding empty beer cans on their table, harassing patrons, brawling and behaving generally in a fashion that may be termed, at best, as obnoxious.
Shortly after they had taken their seats the plaintiffs, none of whom were in anywise boisterous or unruly, were approached by one of the aforesaid male characters who bummed a light for his cigarette. After being accommodated he returned to his peer group across the room. In a matter of minutes several members of the graceless group surrounded the table at which the plaintiffs were seated, all seemingly itching for trouble. One of their number accused the plaintiffs of making uncomplimentary remarks about his girl friend (one of the go-go dancers who also served as waitresses) and invited them outside for a fight. When this gracious invitation was firmly declined, the gang began its vicious attack by kicking the chair out from under Mr. Kimple. The ultimate result of the ensuing affray was that all three plaintiffs were injured amidst an unrelenting rain of blows, kicks and missiles. Further details of the gory assault will be related when and as required.
The -basis of the plaintiffs’ claims against Mr. Foster, the pro prietor o£ The Roaring Sixties, was his failure to provide them with the protection to which they were entitled as his guests. There is actually little dispute between plaintiffs and defendant with respect to the general proposition that a tavern operator owes his patrons the duty to exercise reasonable care for their personal safety. In this jurisdiction the general rule has been phrased in Huddleston v. Clark, 186 Kan. 209, 349 P. 2d 888, in these words:
“While the owner and operator of a public tavern and grill is held to a stricter accountability for injuries to patrons than is the owner of private premises generally, the rule is that he is not an insurer of the patrons, but owes them only what, under the particular circumstances, is ordinary and reasonable care.” (Syl. § 2.)
We find this rule to be in substantial accord with the prevailing doctrine which is expressed in 40 Am. Jur. 2d, Hotels, Motels, Etc., § 112, p. 987:
“A proprietor of an inn, hotel, restaurant, or similar establishment is liable for an assault upon a guest or patron by another guest, patron, or third person where he has reason to anticipate such assault, and fails to exercise reasonable care under the circumstances to prevent the assault or interfere with its execution. . . .”
To similar effect is Reilly v. 180 Club, Inc., 14 N. J. Super. 420, 82 A 2d 210, wherein the court said:
“It is in the law the duty of a tavern-keeper to exercise reasonable care, vigilance, and prudence to protect his guests from injury from the disorderly acts of other guests. . . .” (p. 424.)
For similar expressions of this principles see Parker v. Kirkwood, 134 Kan. 749, 752, 8 P. 2d 340; Holcomb v. Meeds, 173 Kan. 321, 246 P. 2d 239; Restatement, Torts, § 348 (1934 Ed.); 43 C. J. S., Innkeepers, § 22, pp. 1173-1176; Anno., 70 A. L. R. 2d, Patron, Injury Ry Third Person, pp. 628, et seq.
Although, as we have said, the defendant does not seriously question this legal maxim, he calls our attention to its qualification in the following particular: That the proprietor’s duty to protect his patrons does not arise under the rule until the impending danger becomes apparent to the tavern keeper, or the circumstances are such that an alert and prudent person would be placed on notice of the probability of danger. (Stevenson v. City of Kansas City, 187 Kan. 705, 360 P. 2d 1; Cale v. Johnson, 177 Kan. 576, 280 P. 2d 588; Moore v. Yearwood, 24 Ill. App. 2d 248, 164 N. E. 2d 215.)
Pursuing this theme, the defendant asserts that the record is entirely bereft of evidence which would tend to place him on notice of impending danger. In making this assertion, we believe the defendant is mistaken. As we view this record, there is ample evidence to have alerted both the defendant himself and his go-go girl manager to the probability of violence erupting from the rowdy and unruly gang which had infested the tavern since afternoon.
We shall make no attempt to set out the evidence in detail. It is sufficient to say that “the guys” around the beer can pyramid, who ranged in number as high as eight or ten, were high and belligerent at 4:30 that afternoon and “maybe wanted to start a fight”; that about 5:15 or so the male manager (Mr. Foster) was in the tavern and set the boys up for a free beer; about 5:30 or 6:00 a fight broke out in which one of the fellows from the “pyramid” table hit and ran another guy out of tire tavern; that the group was loud and boisterous and “would have gotten thrown out [of any other bar], because of the noise they were creating and the belligerence or sarcasm toward other people.”
There is further evidence from a member of the gang that Foster’s employees knew of this prior fight because they turned on the lights to stop it; and that there was another incident at the tavern over a hat involving some farm boys and one of the gang took the hat and everyone got to joking about it.
Mr. Foster himself testified that he was in the tavern from 5:00 to 6:00 that afternoon; that the boys were then building the pyramid of beer cans; and that he bought the boys a round of free beer.
We think the foregoing evidence was clearly sufficient, if believed by the jury, to warrant the jury in concluding that the defendant Foster, himself, had knowledge of facts which should reasonably have placed him on notice that Rouble might well be expected from the unruly, belligerent group, and that an explosion might erupt which would endanger the safety of his patrons. True, Mr. Foster denied that any disturbance took place in the tavern while he was there, but there is evidence from which a contrary inference could well be drawn. Moreover, the defendant was aware of the gang’s presence when he left his place of business and had helped to assuage its members’ thirst by providing free beers all around.
Not only may notice be imparted to the defendant himself, but his go-go manager, whose duty it was to maintain order in the absence of her employer, was on the scene as the storm clouds gathered, and she took no steps to forestall the approaching tempest. The evidence is to the effect that before the physical attack commenced, the plaintiffs and other patrons repeatedly told the girls to summon the police but to no effect. In fact, it may fairly be concluded from the evidence that the police were not called until the battle had raged for some ten minutes or so, during which time at least two of the go-go girls joined in the fray and belted the plaintiffs.
A case with similar overtones arose in our sister state of Minnesota (Priewe v. Bartz, 249 Minn. 488, 83 N. W. 2d 116, 70 A. L. R. 2d 621.) There, a barmaid was in charge of her employer’s place of business when an inebriated customer challenged another intoxicated customer to a fight. The barmaid did no more than to tell both inebriates to step outside if they wanted to fight. The police were not called although there was ample time for doing so. In upholding a verdict against the tavern owner in favor of an innocent third party who sustained injuries as a result of the fight, the Minnesota court said:
“. . . [T]here can be no doubt that Mogen, the operator of a 3.2 beer establishment, owed a duty to those coming upon his premises to exercise reasonable care to protect them from injury at the hands of other patrons. . . .” (p. 491.)
“. . . The duty of the proprietor was not met by the admonition of the barmaid that the parties should go outside if they wanted to fight. . . . There must be some affirmative action to maintain order on the premises by demanding that such a person leave or by calling the authorities to enforce such demand. . . .” (pp. 492, 493.)
In Peck v. Gerber, 154 Or. 126, 59 P. 2d 675, 106 A. L. R. 996, the plaintiff was a guest in a restaurant at which alcoholic drinks were served. He was injured when two young men had an altercation, one of whom was knocked over and against him. The Oregon court upheld a verdict in the plaintiff’s favor and in the course of its opinion stated:
“A guest or patron of such establishment has a right to rely on the belief that he is in an orderly house, and that the operator, personally or by his delegated representative, is exercising reasonable care to the end that the doings in the house shall be orderly . . .” (p. 136.)
In our opinion there is ample evidence to establish that both the defendant and his designated manager had notice of sufficient facts to have alerted them to the potentiality of danger to the guests of
The Roaring Sixties. A case in point is Coca v. Arceo, 71 N. M. 186, 376 P. 2d 970, wherein the court said:
“. . . The rule [of notice] does not require a long and continued course of conduct to find that the proprietor had knowledge of the violent disposition of the other patron — all that is necessary is that there be a sequence of conduct sufficiently long to enable the proprietor to act for the patron’s safety. It is not necessary that the proprietor know of a history of a series of offenses against the peace. . . .” (p. 190.)
The defendant complains of instructions given the jury to the effect that none of the plaintiffs were guilty of contributory negligence. Under the circumstances shown by the record we find no error in this respect. There is no evidence to indicate that plaintiffs were misbehaving or rowdy in any particular; the evidence, indeed, is quite to the contrary. They consistently sought to evade trouble until it was forced upon them.
Although the chief instigator of the attack accused one of the men of making a derogatory remark about his girl, this was rank hearsay on his part. Patrons sitting near the plaintiffs’ table heard no remarks of an objectionable nature. The plaintiffs denied any disparaging utterances on their part, and the go-go girl herself, who may or may not have inflamed her boy friend’s ire to fighting pitch, did not appear at the trial to favor the court with her version of the affair.
A number of alleged trial errors must be mentioned briefly. Objection was made to the admission of a picture, taken at the hospital, of the area over Kimple’s eye. This area, together with the eyelid, had been gashed and cut when a glass or ashtray was hurled into his face. While somewhat grotesque, and not readily understandable, the picture was thoroughly explained by Mr. Kimple in his testimony. Under the rule set out in State v. Turner, 193 Kan. 189, 392 P. 2d 863, we discern no error in admitting the photograph.
Mr. Kimple, at the time of the fight, was wearing a steel plate in the front part of his skull, the aftermath of a former head injury resulting from an accident. Over the defendant’s objection, Kimple testified to the fact and as to its possible consequences. We think no error resulted, if for no other reason than that Mr. Kimple also testified the plate was now loose.
Exception is taken to the court’s instruction as to damages. The objection is focused on references to future pain and suffering and future disability, the basis of the objection being there was no evidence of future disability, pain or suffering. In all candor it must be acknowledged that as to Stahly and Morris there was no testimony going to the effects which might be expected from the beatings in the future, even though both men sustained severe injuries incapacitating them for considerable periods of time. In the case of Kimple, there was evidence, as already pointed out, from which it might be inferred that the plate in his skull was loosened in the affray, thus affording some basis for future disability as to him.
It must be said that the trial court did qualify its references as to future effects with the limiting expressions “any” and “if any.” Moreover, the jury did not separate the amounts awarded into individual items and it is impossible to determine whether any allowance whatever was made for future pain, suffering and disability. Accordingly, we cannot say that prejudice resulted from the instruction on damages, even though the trial court might well have observed the admonition found in PIK 9.01, at page 255, that where evidence of future damage is lacking, all reference thereto should be deleted from the instructions.
Prejudicial error has not been made to appear and the judgments are affirmed as to each plaintiff.
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ORDER OF CENSURE
Whereas, in a proceeding conducted by the State Board of Law Examiners to inquire into a complaint of alleged professional misconduct by Davis S. Carson, of Wichita, and,
Whereas, following a full hearing as to such complaint the State Board of Law Examiners found that said Davis S. Carson, was guilty of “negligence and inattention to his client’s cause,” and,
Whereas, the State Board of Law Examiners has made a written recommendation to this court that said Davis S. Carson be disciplined by Public Censure as provided by Rule No. 205 (m) (2), (203 Kan. lv), and,
Whereas, the said Davis S. Carson, pursuant to subdivision (n) of Rule No. 205, above, has, through his counsel, in writing elected to accept such recommended discipline and to pay the costs of the proceeding, and,
Whereas, upon consideration of the record and being fully advised in the premises, the court accepts the recommendation of the State Board of Law Examiners and the written acceptance thereof.
It is, therefore, by the court considered, ordered and adjudged that the said Davis S. Carson be, and he is hereby Censured by this court and that he pay the costs of the proceeding.
It is further ordered that this Order of Censure be published in the official Kansas Reports.
By order of the court,
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The opinion of the court was delivered by
Schroeder, J.:
In this action the plaintiff seeks to recover for personal injuries allegedly sustained while riding his motorcycle which collided with a stray grocery cart on Kellogg Street in the city of Wichita, Kansas. The trial court sustained the defendant’s motion for summary judgment, and appeal has been duly perfected.
The basic question is whether an agency relationship has been established by the record between the owner/occupant and the driver of a vehicle allegedly responsible for causing the grocery cart to be in the street.
The trial court determined the matter on a motion for summary judgment at the pretrial conference, but nowhere in the record on appeal is this court informed what the trial court took into consideration in ruling upon the motion for summary judgment. The journal entry recites the trial court took the matter under advisement, “and after studying the files, arguments of counsel, and being fully advised in the premises,” found the motion for summary judgment should be sustained. We must, therefore, assume the trial court considered what is presented in the record on appeal, and that no objection or challenge was made by the appellant to the testimony given in the depositions which appear in the record.
From the record it is disclosed that at approximately 1:30 a. m. on September 10, 1966, the plaintiff (appellant) was driving his motorcycle in an easterly direction on Kellogg Street in Wichita and collided with an unoccupied and unmanned grocery cart owned by Farha Red Bud Super Market. The record is completely silent as to exactly how the grocery cart came to be on Kellogg Street.
The plaintiff initially sued Farha Red Bud Super Market, Randy Barger, Sandra Welch (Barger) and G. N. Welch, father of Sandra. The plaintiff initially alleged that Randy, in the company of Sandra, pushed or dragged the grocery cart from the Farha Red Bud Super Market onto' Kellogg Street.
The plaintiff subsequently amended his petition to allege that Randy and Sandra were engaged in a joint venture and/or that Randy was Sandra’s agent. In the trial court Farha Red Bud Super Market was dismissed from the suit by a stipulation of the parties; the motion for summary judgment of the defendant, G. N. Welch, was sustained, and no appeal was taken from such order; and the motion of the defendant, Randy Barger, to dismiss on the ground that he was a minor and not properly served by summons in the case was likewise sustained, and no appeal has been taken from such dismissal. The remaining defendant, Sandra Welch (Barger) is the appellee herein.
At the time of the incident in question Randy Barger and Sandra Welch wex'e dating each other, but prior to the presentation of this matter to the trial court they were married. At the time in question Randy worked at a Safeway Store in Wichita, and Sandra picked him up at that place in her automobile when Randy got off work. Sandra’s automobile was a 1965 MG midget convertible, green in color. It was titled jointly in Sandra and her mother. Randy had previously made arrangements with a friend named Chuck, and Randy and Sandra went to Chuck’s house for a while after work. Neither Randy nor Sandra had anything of an alcoholic nature to drink during the night in question. Later Randy drove Sandra’s car to the Farha Red Bud Store accompanied by Sandra, where he attempted to- cash a payroll check and purchase some cokes. The check for approximately $40 was too large for the store to cash at that late hour, so Randy and Sandra left the store and returned to Sandra’s car in the parking lot. Sandra entered the car on the passenger side.
Before Randy entered the car on the driver’s side he noticed a grocery cart close to the rear of the car on the driver’s side; the cart was not there when they entered the store. Before Randy got into the car he took the grocery cart and pushed it back toward the store front. He then got into the driver’s side of Sandra’s car and drove out the side exit of the parking lot to Sandra’s home in Derby. Randy never touched the cart while in the auto, nor did he cause the auto to touch the cart in any way. Randy and Sandra did not know an accident had occurred involving a grocery cart until sometime later.
On the night in question Randy drove wherever he wanted to get his check cashed and Sandra said nothing as to where he should go. She exercised no control over Randy in the operation, driving or routing of her automobile as to how or where it was to be driven, although she could have expressed her opinions to him if she felt it to be necessary. Sandra relied on Randy to drive in a careful manner and he had driven her car before. On the night in question he was driving her automobile with her permission.
A sketch drawn by Randy when his deposition was taken is marked defendant’s exhibit No. 2 and appears in the record. It discloses the location of the Farha Red Bud Super Market with respect to Kellogg Street and the parking lot. Randy marked the spot on the parking lot where he had parked Sandra’s automobile, where the grocery cart was located, and the direction in which he pushed the cart. It also shows the drive entrance and exit to the parking lot. It may be inferred, had the grocery cart turned to the left in its route, it could have gone out of the driveway entrance and onto Kellogg Street, but there is nothing in the record to disclose that it did.
The first point asserted by the appellant is that the trial court erred in ruling that the defendant, Randy Barger, was not the agent in law of Sandra Welch (Barger) prior to, during and at the time of the negligent acts alleged.
The appellant says in his brief:
“In order to properly apprize the court of the true significance of this issue, it must be stated that the liability insurance policy covering Sandra Welch (Barger) at the time of the accident, excluded coverage for a driver under the age of 25, enrolled as a student in any university or educational institution. Therefore unless Barger can be held as the agent of Sandra Welch Barger there will be no insurance applicable to the accident.”
Whether the “true significance” of this case to the appellant depends on his ability to collect a judgment, if one should be recovered, is immaterial. The record herein is completely devoid of any statements, testimony or pleadings concerning insurance coverage. Accordingly, the question of insurance coverage is not an issue in this case. By statute, evidence of insurance is specifically inadmissible as having probative value on an issue of negligence or liability. (K. S. A. 60-454.) Moreover, it is established law in this state that the knowing injection of liability insurance coverage by the plaintiff into a negligence lawsuit is inherently prejudicial and grounds for mistrial. (McGuire v. McGuire, 152 Kan. 237, 240, 103 P. 2d 884; and Coffman v. Shearer, 140 Kan. 176, 34 P. 2d 97.)
The issues here involved are of negligence, and the imputability of such negligence, if any. Insurance coverage, or the lack thereof, has no significance in this appeal at all.
The appellant concedes in his brief Randy and Sandra were not engaged in any joint enterprise at the time of the incident here involved, and that this is not a joint venture case. As a result, the only issue concerning imputability of Randy’s negligence is one of “pure agency” of the respondeat superior variety.
The appellant relies upon the annotation in 50 A. L. R. 2d 1281 for the proposition that in the absence of evidence to the contrary, the legal relationship between the owner of a motor vehicle who is present and a person who drives it with his permission is that of principal and agent or master and servant, and therefore, the owner is liable for damages caused to a third person by the driver’s negligence. He also relies upon Rodgers v. Arapahoe Pipe Line Co., 185 Kan. 424, 345 P. 2d 702, Syl. ¶ 3, for the proposition that there may be an implied intention to create an agency. The appellant cites us to many cases from other jurisdictions which support the statement made in the above A. L. R. annotation.
We think it unnecessary to engage in an academic discussion on the question of Randy’s agency while driving the automobile owned by Sandra and in which she was a passenger. Assuming, arguendo, the grocery cart which was struck by the appellant’s motorcycle on Kellogg Street is the same cart close to Sandra’s automobile which Randy pushed in the Farha Red Bud parking lot, the alleged negligent conduct of Randy, which the appellant seeks to impute to Sandra, is the act of pushing the grocery cart toward the grocery store building. This act occurred before Randy ever en tered into the auto in the parking lot. Randy never touched the cart while in the auto, nor did he cause the auto to touch the cart as he was driving out of the Farha Red Bud parking lot.
The cases relied upon by the appellant only impute to an owner/ occupant the negligent acts of a driver committed while driving the automobile. It is the negligent operation of the vehicle which is imputed under the doctrine of respondeat superior.
In the case at bar the alleged negligent act of Randy occurred at a point in time and at a place when Randy was neither driving nor operating nor even sitting in the automobile in question.
Assuming Randy’s negligent driving could be imputed to Sandra (contra, see Angell v. Hester, 186 Kan. 43, 348 P. 2d 1050; Hunter v. Brand, 186 Kan. 415, 350 P. 2d 805; Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459; Zeeb v. Bdhnmaier, 103 Kan. 599, 176 Pac. 326, rehearing denied 103 Kan. 895, 176 Pac. 643; and Snyder v. Eriksen, 109 Kan. 314, 198 Pac. 1080), no law has been cited to this court which would hold Sandra responsible for the negligent acts of Randy committed before he entered the auto. If such were the law, then Sandra may likewise be responsible for Randy’s negligent acts committed while he was inside the grocery store.
By no stretch of the imagination can Randy be called the agent of Sandra for activities occurring outside the vehicle in question. On the record here presented she had no right of control over Randy, her fiancée, while he was on the parking lot prior to entering the auto. (See Zeeb v. Bahnmaier, supra.)
Since the alleged negligent act of Randy occurred before he entered Sandra’s automobile, there is no basis in agency law to support a holding that Sandra is responsible for Randy’s negligence.
Cases in this jurisdiction have consistently held the mere ownership of an automobile will not support an agency, and will not support liability. (Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863; Zeeb v. Bahnmaier, supra; Tice v. Crowder, 119 Kan. 494, 240 Pac. 964; and Stilwell v. Faith, 142 Kan. 730, 52 P. 2d 635.)
In the Tice case the court said:
“In an action against the owner of an automobile for damages resulting from an automobile collision occasioned by the negligent operation of the trespassing car by another than the owner, proof of ownership does not make a prima fade case of liability, or raise a presumption of liability, on the part of the owner. . . .” (Syl. ¶ 1.)
In Stihoell the court said:
. . It is trite and settled law in this jurisdiction that liability for an automobile accident does not attach to the owner of the car from the mere fact of ownership nor from the fact that he may have been riding in it at the time of the accident. . . .” (p. 732.)
The appellant contends the trial court erred in ruling there was nothing in the evidence to indicate that Sandra was individually negligent in her own capacity.
The argument asserted by the appellant on this point is that an owner may be negligent “if he permits an incompetent and negligent driver to drive and especially where the owner remains in the car and fails to protest against careless driving.” (Citing, Robe v. Ager et al, 80 S. D. 597, 129 N. W. 2d 47.)
There is no evidence whatever in the record to disclose that Randy was an incompetent driver. The rule asserted by the appellant, therefore, has no application to the case at bar. Furthermore, the record discloses Randy was not driving when the alleged negligent act occurred. Accordingly, Sandra could not be independently negligent because there is absolutely no evidence in the record to support the appellant’s argument that Sandra permitted an incompetent driver to operate her automobile.
Upon the record here presented the Rial court properly sustained the motion of Sandra for a summary judgment.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
This action was initiated by plaintiffs, D. A. Hind-man and Charley A. Lynd, to quiet their title to 333 acres of land located in Rooks County, Kansas. Some of the defendants answered denying plaintiffs’ title and by counterclaim they sought to establish their ownership, to have the plaintiffs ejected and to recover damages for wrongful possession. The plaintiffs prevailed in the court below. This appeal was taken by some of the defendants.
Plaintiffs’ (appellees’) title to the real estate is based upon a warranty deed from George W. Atherton and wife dated and filed of record on February 11, 1944, conveying the premises to appellee, Charley A. Lynd. In addition a judgment in a quiet title action was entered in 1944 against these same defendants-appellants or their privies. Appellants’ counterclaim constitutes a collateral attack upon the prior judgment quieting the title of Charley A. Lynd. The prior judgment was entered April 12, 1944, in Case No. 7807, entitled Lynd v. Hillman, et al, in the District Court of Rooks County, Kansas. No appeal was taken from that judgment. Defendants (appellants) contend this judgment is void for fraud and lack of jurisdiction.
The findings by the district court contain the facts necessary to understand the contentions of the parties. Pertinent findings of the lower court are:
“2. At one time, the real estate in question was owned by James E. Atherton, who died testate on July 21, 1925. The will of James E. Atherton was admitted to probate in Rooks County, Kansas. The property in question was devised by paragraph Sixth of the will, which reads:
“ ‘Sixth: I give, devise and bequeath to my son, George W. Atherton, of Sharon Springs, Kansas, to be held by him and for his use during his natural life time, provided he pays the taxes as they become due and payable on the following described land: All that portion of Section Thirty-two (32), Township Nine (9), Range Nineteen (19), Rooks County, Kansas, lying south of the Union Pacific Railroad right-of-way. After the death of my son, the said George W. Atherton, it is my will and I hereby direct that the last above described real estate shall descend to tire children of his body and that the same be held by them and for their use for a period of twenty (20) years from the time of the death of the said George W. Atherton, after which time the same children of my son, George W. Atherton, shall come into full possession of the said described real estate and may hold the same or dispose thereof in any manner they wish.’ ”
The present defendants are the children and grandchildren of George W. Atherton.
“3. George [W.] Atherton took possession of the real estate following the death of his father, James E. Atherton, and continued in possession of the property until the occurrence of certain events in 1944. For at least 12 years prior to 1944, George [W.] Atherton failed to pay the taxes on the property. The George [W.] Atherton family was in difficult financial straits in 1944, and for several years before, and the taxes were unpaid because of this condition.
“4. In the fall of 1943, the Board of County Commissioners of Rooks County, Kansas, brought an action (Case No. 7783, styled Board of Comm. v. Silvers) to foreclose its hen for delinquent taxes on this and other tracts of real estate in Rooks County. At that time the delinquent taxes on this property totaled $3,045.59. Proper service was made on George [W.] Atherton and his wife, Hattie Atherton, and on each of their eight children.
“5. Shortly after the commencement of the tax foreclosure action, George [W.] Atherton and his wife, employed D. A. Hindman, an attorney in Stockton, Kansas, and one of the plaintiffs in this action, to represent them as counsel in the tax foreclosure case. Hindman, with the knowledge and consent of his clients, prepared and filed an answer in the tax foreclosure action admitting that George [W.] Atherton was the owner of the property and requesting that if the property be sold at tax foreclosure, any surplus in sale proceeds above the amount of delinquent taxes and costs of the proceeding be paid to George [W.] Atherton. In due course, an order was entered in the tax foreclosure proceeding directing that any surplus sale proceeds be paid to George [W.] Atherton.
“6. George [W.] Atherton did not have the money to pay the delinquent taxes on the real estate; prior to the foreclosure sale he and his wife undertook to arrange a private sale of the property under circumstances which would preserve some interest in the mineral estate for themselves and their children. The tax foreclosure sale was to be held February 11, 1944. George [W.] Atherton and his wife, Hattie Atherton, traveled to Wakeeney to meet with the plaintiff Lynd. The plaintiff Hindman was not present at the meeting. On February 10, the day before the sale, Hattie Atherton called Hindman long distance, and informed him that the Athertons and the Lynds had arrived at an agreement by which Lynd would purchase the property and, as consideration for the purchase, would pay the delinquent taxes and an additional amount of $3,000 to George [W.] and Hattie Atherton. It was also agreed that George [W.] and Hattie Atherton would retain or receive by conveyance from Lynd, an undivided 3/8ths interest in the oil, gas and other minerals under the property for a period of twenty (20) years from the date of the transaction and as long as there was production on the property. Hattie Atherton requested Hind-man to advance the funds necessary to pay the taxes and redeem the property before sale because it appeared likely that weather conditions would prevent the Lynds and Athertons from making the trip from Wakeeney to Stockton by the time of the sale. Hindman followed the instructions of his clients and on the following day, February 10, 1944, advanced the funds necessary to pay the delinquent taxes and caused the redemption of the property to be entered in the name of George W. Atherton.
“7. The Lynds and the Athertons went to Stockton and met with the plaintiff Hindman to arrange for closing of the sale transaction. Lynd reimbursed Hindman for the funds advanced in payment of the delinquent taxes. A special warranty deed was prepared, executed and delivered by George W. Atherton and Hattie Atherton, transferring title to the real estate in question to the plaintiff Lynd. Hindman advised the parties that because of the terms ■of the will of James E. Atherton and doubts or legal questions as to the character of the estate created by the Sixth paragraph of the will which passed title to this property, it would be necessary to commence and successfully conclude a quiet title action in order to vest in the purchasers a merchantable title. During this meeting, a contract of employment between Lynd and his wife and Hindman was prepared and executed, providing, in substance, that Hindman would been titled to receive for his services in connection with the title action an undivided l/4th interest in the oil, gas and mineral rights in the land for a period of twenty (20) years and as long as oil or gas is produced from the property if he were successful in clearing the title to the property. During the meeting the plaintiff Lynd requested George [W.] and Hattie Atherton to contact their eight daughters and explain the transaction to them in order to be certain that there would be no misunderstandings or hard feelings in die family.
“8. The plaintiff Hindman prepared and filed the papers necessary to commence an action to quiet the title. (Case No. 7807, styled Lynd v. Hill-man, in the District Court of Rooks County, Kansas.) The eight daughters of George [W.] and Hattie Atherton, along with other parties, were named and joined as defendants. The records on file with the Clerk of this Court in Case No. 7807 (of which the Court takes judicial notice with the consent and stipulation of the parties) reflect that each of the eight children of George W. Atherton and Hattie Atherton were duly and properly served or summoned in the quiet title suit in the manner provided by law. In addition to service by publication on the defendants residing outside the state of Kansas, plaintiff Hindman mailed by registered mail copies of the publication notice to all such ■defendants, and receipts with signatures of these defendants appearing thereon were returned and filed in Case No. 7807. During the pendency of the quiet title suit, George [W.] and Hattie Atherton contacted each of their daughters to inform them of the transaction with Lynd and the pending quiet title suit. •On February 16, 1944, Hattie Atherton wrote plaintiff Lynd, as follows:
“ ‘We have seen and heard from five of the children and I have written the other three everything is perfectly satisfactory with them and they will do all they can to help clear the title for you either by ignoring the notice the sheriff serves on them and if it is necessary later for them to sign the deed, they will do that. All they want is for the agreement between you, Elida (Lynd), George and I put into writing giving George and I and our heirs 3/8ths of the oil and gas rights or mineral rights for twenty years or as long after as the land produces.’ (Plaintiffs’ Exh. 5.)
“On April 7, 1944, Hindman, acting on the instruction of his clients, prepared the agreement requested in Hattie Atherton’s letter to Lynd. This contract was signed by George [W.] Atherton and his wife, and Lynd and his wife. It provided, in substance, that the Lynds would convey to the Athertons 3/8ths interest in the oil, gas and mineral rights for a period of twenty (20) years and as long as oil is produced from the premises, immediately after completion of the quiet title proceeding.
“9. The Court finds that each of the eight daughters of George [W.] and Hattie Atherton (including May Catherine Shepard, deceased) had actual knowledge of the transaction entered into by their parents with the plaintiff Lynd. They also knew that as a part of that transaction a quiet title suit was commenced and prosecuted in which they were joined and summoned as defendants. The Court also finds that the eight daughters failed to appear and plead or assert any title to the property in the quiet title action and that they did so knowingly and intentionally. None of the defendants acted upon any advice or statement of the plaintiffs. None of the eight children were under any disability which would have prevented them from asserting any claims or rights which they might have had or believed they had at the time of the quiet title suit. The defendants and cross-petitioners in this action have failed to sustain the burden of showing that they were misled, defrauded or overreached by anyone in connection with their failure to appear and litigate the 1944 quiet title action.
“10. The evidence is clear and uncontroverted, and the Court finds, that all communications with the eight daughters of George [W.] and Hattie Atherton wh^ch took place during the transaction with Lynd and the commencement and prosecution of the quiet title action, were communications between the children and their parents. Neither Hindman nor Lynd had any communications or made any representations to the children of George [W.] and Hattie Atherton concerning the Lynd transaction or the quiet title suit. There is no creditable evidence adduced by the defendants and cross-petitioners in this action tending to establish that George [W.] or Hattie Atherton were acting as the agents or as conspirators with either of the plaintiffs in connection with any statements made by the parents to their children concerning the Lynd transaction or the quiet title suit. The evidence adduced by all of the parties convinces the Court that Lynd and Hindman were at all times acting in good faith. The Court also believes that at the time of the tax foreclosure the transaction with Lynd and the quiet title action, George [W.] Atherton and his wife were acting in good faith and pursued the course which they believed to be the most reasonable and best one available to them to salvage some interest in the land for themselves and for their children.
“11. On April 12, 1944, judgment was entered in the quiet title action (Case No. 7807) quieting title to the fee simple interest in the real estate in the plaintiff Lynd, and declaring the defendants in that action to have no right, title or interest in the property. No appeal was taken from that judgment. At the time of the trial and final hearing in that action, the Lynds and Athertons were present in the courtroom. There was no misstatement or misrepresentation by anyone present concerning the interest, position or failure to appear and plead, of the children of George [W.] and Hattie Atherton. The plaintiff Lynd entered into possession of the property and has remained in possession and has payed (sic) taxes on the surface and 3/8ths of the mineral estate since that date. The plaintiff Hindman entered into possession of an undivided l/4th interest in the mineral estate.
“12. On or about June 15, 1944, the Lynds and the Athertons concluded the transaction between them. Lynd paid George [W.] Atherton the sum of $3,000, the balance of the purchase price of the property. Lynd and his wife executed royalty or mineral deeds to George W. Atherton and his wife, and to plaintiff Hindman, which conformed to and carried out the terms of the written agreements between them.
“13. At various times since 1944, the plaintiffs and their wives and George [W.] and Hattie Atherton joined in the execution of oil and gas leases covering all or parts of the property in question. Oil production was first discovered on the property in 1951, but these wells were subsequently plugged and abandoned. In 1960, production was again discovered, and there are several producing wells on the property at the present time.
“14. When George [W.] and Hattie Atherton received the payment of $3,000 from the plaintiff Lynd, in the summer of 1944, they paid to each of their daughters the sum of $100. The children knew and understood that this money was a part of the consideration received by their parents in the Lynd transaction. When oil was discovered and first produced from the property in 1951, George [W.] and Hattie Atherton distributed portions of the royalties received by them to their eight daughters, who accepted and retained these payments with knowledge of the source from which they came. George [W.] Atherton died in 1961, and Hattie Atherton died in 1963 [1964], Following the death of their parents, the eight daughters of George [W.] and Hattie Atherton succeeded to the 3/8ths mineral and royalty interest acquired by their parents in the Lynd transaction. Since the probate of their parents’ estates, they have been paid, and have accepted and retained, their proportionate share of the oil and gas royalties accruing to the 3/8ths royalty interest owned by their parents. The defendants executed division orders with the purchasers of crude oil from the premises under which they were paid their respective shares of the 3/8ths royalty interest owned by their parents.
“15. The defendants failed to take any action or commence any legal proceedings to assert any right, title or interest in the property or set aside the judgment in Case No. 7807 for more than twenty (20) years after the Lynd transaction and the entry of judgment in Case No. 7807. On March 25, 1960, the defendant Margaret Christensen (then Margaret Jewkes) executed and delivered a Quit Claim Deed to the property in question in which her father George [W.] Atherton was named as the grantee.”
The trial court’s conclusions of law included the following:
“1. The Court has jurisdiction of the parties and this action.
“2. The defendants and cross-petitioners have failed to sustain the burden of proof to show that they were defrauded or in any way unlawfully deprived of an interest or expected interest in the real estate involved in this action.
“4. The defendants’ claims in this action, and their cross-petitions, amount to an improper collateral attack upon the judgment of this Court in Case No. 7807, Lynd v. Hillman, et al.
“5. The judgment in Case No. 7807 is res judicata and conclusive of the defendant’s claims asserted and litigated in this action.
“6. The defendants’ cross-petitions are denied and plaintiffs are entitled to judgment against the defendants and each of them for the relief sought in their petition. Counsel for plaintiffs will prepare and submit an appropriate Journal Entry of Judgment.”
A majority of the twenty-six points raised on appeal are based upon contentions by appellants that the trial court erred in its findings of fact. For us to accept these contentions it must appear there is no substantial evidence in the record supporting the trial court’s findings. (Fine v. Neale Construction Co., 186 Kan. 537, 352 P. 2d 404.) Normally, findings of a negative character will not be set aside on appellate review since adequate opportunity for weighing evidence and determining credibility of witnesses is lacking. (Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1.) Findings of fact will not be set aside on appellate review if substantially supported by competent evidence, nor will a judgment be overturned for insufficiency of evidence when there is substantial competent evidence to sustain it. (In re Estate of Countryman, 203 Kan. 731, 457 P. 2d 53.)
We have examined the evidence in the record. The district court’s findings of fact are supported by substantial evidence.
As previously mentioned the appellants’ counterclaims constitute a collateral attack upon the 1944 decree quieting title and are based upon a claim of fraud which is the paramount issue in the case.
The trial court found that there was no fraud in connection with the 1944 quiet title action. If the appellants are not able to prevail on this issue any contentions that they are remaindermen under their grandfather’s will have already been adversely adjudicated and disposed of by the judgment in the 1944 quiet title action. The appellants have argued that res judicata is not applicable solely because the judgment in 1944 was obtained by fraud. This judgment, if valid, cuts off any right or title they could possibly have had to the property.
The appellants claim that the judgment in the 1944 case was fraudulent because their position with respect to the relief sought was misrepresented to the court. The trial corut in the present case found exactly to the contrary. The evidence which supports this important finding is primarily the testimonies of Hindman, Wayne McCaslin and Clarence Lynd. Mr. Hindman testified that there was no statement made to the court during the quiet title hearing as to why the Atherton sisters were in default, nor was there a statement made to the court that everyone was jointly asking for the same relief. Mr. McCaslin, who was a court appointed attorney in the case, and Clarence Lynd testified that they did not hear any statements during the hearing concerning the appellants’ positions or reasons why they were not in appearance.
Those were the only witnesses who were present at the hearing in 1944. No testimony was given by any of the defendants that they talked or corresponded with Hindman or Lynd during the time of the 1944 quiet title proceeding. The testimony of these witnesses supports the trial court’s finding that judgment was not obtained by fraud.
Another contention concerning fraud on the appellants is that they did not appear because they were led to believe by their mother that their rights would not be affected. There is no question that the defendants received notice of the 1944 suit. If they were misled by their mother as to its import such cannot be attributed to Hindman or Lynd. Plowever, the evidence clearly showed that some of the Atherton sisters were not misled.
Mrs. Alley testified that the reason she did not make an appearance in the case was because she did not like to get involved in lawsuits. Mrs. Shepard wrote a letter to her parents in 1951 or 1952, which was plaintiffs’ Exhibit 10. The letter stated in part:
“Am sorry the girls can’t dry up — it’s so foolish. If Uncle Charley was good enough to save what ever there is there, they should realize he’s been the one who’s made it possible for them to have anything. I’m sure I wouldn’t bite the hand that did a favor.”
Plaintiffs’ Exhibit 11 is a letter from Mrs. Christensen in which she wrote:
“We would have lost the place for taxes if uncle Charlie hadn’t came to the aid of tire folks at that time. We all known (sic) it. The deed to Charlie can’t be broken after a decree quieting title to the place. We had our chance then and didn’t anyone take it. We were glad that Dad could get enough out of it to pay off the debts that he had and to take a pension and try to enjoy life.”
Mrs. Hillman and some of her sisters acknowledged that then-father had divided part of the proceeds from the sale of the farm with them. These letters and testimony of the appellants further support the trial court’s findings that no fraud or misrepresentation existed in connection with the 1944 quiet title action.
In further support of this claim of fraud appellants point out that five years after the decree quieting plantiff Lynd’s title to the real estate a subsequent action was filed. This subsequent action related to a similar provision (the fourth paragraph) of the James E. Atherton will. Although identical language was employed in the fourth paragraph it devised different land, and the action was between different parties. Plaintiff Hindman was employed as local counsel in that case but a different result was reached. In that case the judgment of the trial court was affirmed on appeal to this court. It was held that the language of paragraph four of the will created a life estate with a vested remainder and not a fee tail estate. (Wood River Oil & Refining Co. v. Madden, 169 Kan. 633, 220 P. 2d 154.)
It is a well-established rule that when a court has jurisdiction of the parties to an action and of the subject matter and renders a judgment within its competency such judgment is final and conclusive unless corrected or modified on appeal. (McFadden v. McFadden, 187 Kan. 398, 357 P. 2d 751; In re Estate of Mullin, 201 Kan. 756, 763, 443 P. 2d 331.) The jurisdiction and authority of a court to enter upon inquiry and make a decision is not limited to the power to decide a case rightly but includes the power to decide it wrongly. (Wycoff v. Quick Way Flomes, Inc., 201 Kan. 442, 446, 441 P. 2d 886.) The test of jurisdiction is not a correct decision but a right to enter upon inquiry and make a decision. There must be some finality in judicial decisions and it is generally held that jurisdiction includes the power to decide a case wrongly.
It may be conceded that the decision rendered in 1944 in Case No. 7807, Lynd v. Hillman, et al, was erroneous in light of the Woods River Oil case but the judgment was not corrected or modified on appeal. Proof that the judgment was erroneous will not overturn the trial court’s finding that no fraud was practiced in obtaining the judgment. The court’s finding that no fraud was practiced is based upon substantial evidence.
Appellants predicate error upon the refusal of the trial court to grant their demand for a jury trial. The trial court determined that the issues pertaining to the ownership of the property should be tried to the court first. Consequently, the appellant’s claim for damages fell and was disposed of on a determination of the issue of ownership.
A civil litigant’s constitutional right to a trial by jury (Constitution of Kansas, Bill of Rights, § 5, and U.S. Constitution, Amend ment 7) is predicated on whether the action at common law was one of law or in equity. In determining this question the court should look at the essential nature of the controversy between the parties. (Sutherland v. Sutherland, 187 Kan. 599, 602, 358 P. 2d 776.) This principle is reaffirmed in our statutes, K. S. A. 60-238 and K. S.A. 60-239. The trial of all jury issues demanded should be by jury unless the court upon motion, or of its own initiative, finds that a right of trial by jury of the controlling issues does not exist under the constitution and statutes. (K. S. A. 60-239 (a) (2).)
Appellants and appellees in this case sought to quiet their respective titles to this land. In Kansas quiet title actions instituted by a plaintiff in possession generally involve matters of equitable cognizance and are triable without a jury. (Farmers State Bank v. Banning, 162 Kan. 95, 174 P. 2d 69.)
It is obvious from the pleadings that the controlling issue in the case concerns the validity of the 1944 quiet title decree. Appellants’ request to set aside this judgment is based upon alleged fraud in obtaining the judgment. A court derives jurisdiction to set aside a judgment by exercising its equitable powers. These equitable powers enable the court to set aside a judgment obtained by fraud. (Leslie v. Manufacturing Co., 102 Kan. 159, 163, 169 Pac. 193; 49 C. J. S., Judgments § 341, p. 690.) It follows that relief from a judgment because of fraud originates in equity and a right to a jury trial does not generally exist on a claim to set aside the judgment. (Carrigg v. Anderson, 167 Kan. 238, 243, 205 P. 2d 1004, 9 ALR 2d 545; C. J. S., Juries §§ 37, 38, p. 753.)
Under our present rules of civil procedure a judge in the furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy may order a separate trial of any claim, counterclaim or of any separate issue. (See K.S.A. 60-242 (b), now K.S.A. 1969 Supp. 60-242 (b)“as amended in 1969.)
The controlling issues tried by the court which determined the claims of all par-ties to this action were essentially equitable in nature. No constitutional right to a trial by jury was violated when these controlling equitable issues were separated and tried by the court.
Appellant Morse next contends on appeal that the court did not obtain jurisdiction over certain persons in the 1944 quiet title action. He states that non-resident defendants were served only by pub lication service. The defendants referred to are the husbands of the daughters of George W. Atherton. It appears these husbands were residing with their wives outside the state of Kansas at the time publication service was perfected. The wives received notices of the pendency of the proceedings by registered mail.
The inchoate interest of a husband in the wife’s real property declared in K. S. A. 59-505 does not include such real estate as is taken by legal proceeding prior to the death of the wife. The husband in such case is not an indispensable party to the proceeding. (K. S. A. 59-505; Mosteller v. Gorrell, 41 Kan. 392, 21 Pac. 232; Steffins v. Stewart, 53 Kan. 92, 36 Pac. 55.) No specific defect in the publication service upon these defendants is pointed out and we find none. In addition we do not consider these defendants indispensable parties to the action. One spouse has no direct interest in property inherited by the other, and such spouse has no rights or liabilities in connection with litigation between sibling heirs. (Rost v. Heyka, 133 Kan. 292, 299 Pac. 969; Ackers v. First National Bank of Topeka, 192 Kan. 319, 387 P. 2d 840.)
Appellant Morse contends that George W. Atherton and Hattie Atherton were indispensable parties to the action by reason of their being the sole heirs of a son who died in 1934. Whatever interest they may have inherited in the property from this son in 1934 was conveyed by warranty deed to plaintiff Lynd in 1944. They were not indispensable parties to the action.
Various other parties identified by appellant Morse as improperly omitted from the proceedings were not the “children” of James E. Atherton referred to in the sixth and eleventh paragraphs of his will. They were not contingent beneficiaries and were neither proper nor indispensable parties to the action. We are unable to find any defect in the parties joined in the 1944 quiet title action. The daughters of George W. Atherton were served individually and as representatives of a class. George W. Atherton has since died. He left no additional children of his body. All contingent beneficiaries named in the will were properly joined in the action.
Appellant Morse also attacks the findings of the trial court which appear to be based upon the plaintiffs’ exhibits. These exhibits although offered in evidence were objected to by appellant. The court reserved its rulings on the objections. The record contains nothing further concerning their admission. The court’s findings of fact indicate the exhibits were considered by the court in ar riving at a decision. It appears these exhibits were relevant evidence and under the circumstances they were properly considered by the court regardless of the state of the trial record. (Sailor v. Caldwell, 65 Kan. 86, 68 Pac. 1085; State v. Bowman, 80 Kan. 473, Syl. ¶ 3, 103 Pac. 84; State v. Oswald, 197 Kan. 251, 255, 417 P. 2d 261.) No prejudicial error is shown.
Appellant Morse contends the trial court did not have jurisdiction to decide this case and argues the United States Courts have sole and exclusive jurisdiction over the real estate in question. This contention arises because of proceedings previously commenced in the United States District Court for the District of Kansas and carried on appeal to the United States Court of Appeals, Tenth Circuit. That action concerns this same claim of the appellants to this real estate.
On October 11, 1968, The Honorable George Templar, United States District Judge for the District of Kansas, entered an order in that case (No. T-3987, Shepard, et al. v. Hindman, et al.) granting a stay of further proceedings in that court. The stay order reads in part as follows:
“One of the plaintiffs, Marvin J. Morse, has announced to this Court that a new trial is being sought from the judgment rendered against him and the other plaintiffs by the Rooks County State Court, and if the motion is overruled, that an appeal will be taken by them to the Kansas Supreme Court. Under such circumstances, it is the view of this Court that a stay of further proceedings should be granted as requested by defendants Hindman and Lynd until the motion for a new trial in the Rooks County State Court is determined, and if denied, until the contemplated appeal is heard and determined by the Kansas Supreme Court in that case. Thereafter, the Court will consider any further proceeding required by the facts and circumstances as they then appear.
“it is by the court so ordered.”
The stay order contains the reasoning and the authorities upon which it is based. We see no reason for further examination of appellant Morse’s contention. The United States District Court has denied the contention that exclusive jurisdiction exists in that court. Mr. Morse now asks that we hold to the contrary. This we decline to do.
We have examined all twenty-six points raised on appeal by the appellants. Time and space will not permit us to treat each point separately. Suffice it to say the trial court’s findings are substantially supported by competent evidence appearing in the record. The appellants’ claim constitutes a collateral attack upon the 1944 judgment quieting plaintiff Lynd’s title to this property. The district court had jurisdiction of the parties to that action and of the subject matter. Such judgment is final and conclusive for it was not corrected or modified on appeal.
Questions raised concerning statutes of limitation and laches are therefore academic and need not be examined.
The judgment is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in a declaratory judgment action which was brought to have a municipal ordinance governing the issuance of franchises for community antenna television systems (hereinafter referred to as CATV) declared null and void.
A statement of the general facts, before we reach the specific provisions of the ordinance, may be helpful.
A CATV system consists of a high receiving tower located on high ground. From this receiving point coaxial cables are distributed through the city. The physical plant is quite similar to a telephone plant and the connections to the homes are not unlike telephone drops entering the homes. The advantage of the system is that more stations can be reached by the high antenna. Every television viewer could see the programs transmitted by distant stations if he were to erect an antenna of the same height but the cost would, of course, be prohibitive.
Most CATV service is provided through cables either leased from the local telephone company or owned by the CATV system and strung on utility poles.
The CATV business is an industry that is seeing tremendous growth. The first commercial CATV installation was established in 1950. Today more than 1800 systems are operating in the United States of which more than twenty are operating in Kansas.
It is conceded that CATV systems are engaged in interstate communication so as to be subject to regulation by the Federal Communications Commission. (See United States v. Southwestern Cable Co., 392 U. S. 157, 20 L. ed. 2d 1008, 88 S. Ct. 1994.)
On September 20,1966, the city commission of the city of Wichita, Kansas adopted ordinance No. 28-882 which is involved in this controversy. It dictates the terms and conditions under which a CATV system may be conducted in the city of Wichita.
The plaintiff, the Community Antenna Television of Wichita, Inc., proposes to operate its system through lines leased from Southwestern Bell Telephone Company although it is, if necessary, ready to use its own cables strung on public utility company poles.
The ordinance contained a form of application for franchise which required a detailed statement of all matters specified in the ordinance, and stated:
“Upon consideration of any such application, the Commission may refuse to grant the requested franchise or the Commission may, by ordinance, grant a franchise for a CATV system to any such applicant as may appear from said application to be in its opinion best qualified to render proper and efficient CATV service to television viewers and subscribers in the City. The Commission’s decision in the matter shall be final. If favorably considered, the application submitted shall constitute and form part of the franchise as granted.”
In connection with the ordinance there were also directions for applying for a franchise which stated in part:
“All applications shall be forwarded to the City Cleric and shall be sealed and unopened. Applications must be filed with the City Clerk on or before March 1, 1968. [Extended to November 18, 1968.] Said applications will be processed by the Board of Bids and Contracts, and forwarded to the City Commission with comments of said Board of Bids and Contracts. All applications found to be in conformance with the ordinance and these directions shall be forwarded to the City Commission, who shall make the final determination. If the application is incomplete or not in substantial conformance to the ordinance and directions, then the Board of Bids and Contracts will not forward said proposal to the Board of City Commissioners, but will reject said proposal.”
Four bidders sought the Wichita CATV franchise from the Board of Commissioners of the city of. Wichita. The plaintiff was not among them. Each bidder proposed to use public utility poles to carry the bidder’s own cable. The bidders made cash offers to the city ranging from $25,000 to $100,000 and, in addition, each bidder proposed to pay to the city percentages of its annual revenue with the minimum payments ranging from $8,000 (subject to the $25,000 penalty set forth in the ordinance) to $77,500 and the maximum payments, as projected, ranging from $153,600 to $386,500.
It was stated by plaintiff in oral argument, and the statement was not refuted by the defendant, that the franchise was granted to the highest bidder and all other applications were refused.
We now come to the provisions of the ordinance. The ordinance under attack consists of some twenty-one printed pages and space should not be used for its reproduction in full.
The ordinance devotes considerable space to provisions for the regulation of the use of streets and alleys, to which no objection is made, but commingled therewith are provisions attempting to regulate the conduct of the business itself. Some of such provisions are summarized:
1. A franchise is not to be granted when, in the opinion of the commission, it is not in the public interest.
2. A schedule of proposed rates and charges must be approved by the city commission and no change may be made in the rates and charges without the prior approval of tie commission expressed by resolution.
3. The ordinance controls the duration and renewal of a CATV system’s right to do business; its internal records and books and the transferability of its right to do business.
4. The time when a system is to commence business is controlled.
5. A system is required to serve all customers desiring to be attached.
6. The location of a CATV system’s office is controlled.
7. All of a system’s operational standards are controlled, including band equipment, signal level, signal-to-noise ratio, hum modulation of the picture signal, the VSWR of components used, etc.
8. The ordinance would regulate the signals brought into the city and the channels to be used.
9. The city commission may grant a franchise for a CATV system to such applicant as appears, in its opinion, to be best qualified.
10. A franchise payment is required of a sum equal to a percentage of the gross annual receipts of the grantee.
11. The ordinance required the furnishing, free of charge, of outside connections and services to all hospitals, public and parochial schools located within the city and to municipal buildings.
The validity of the ordinance was challenged by a declaratory judgment action. The trial court concluded in part:
“The franchise payment called for under Ordinance No. 28-882-Sec 5-insofar as the same pertains to a payment to the city of a sum equal to a percentage of the gross annual receipts of the grantee bears no reasonable relationship to expense and inconvenience to be occasioned by the city but is purely a revenue measure.
“Further, that the requirement of Ordinance 28-882-Sec. 15 (i), calling for the furnishing, free of charge, outside connections and services to all hospitals, public and parochial schools located within the City, and to Municipal Buildings bears no reasonable relationship to the expense and inconvenience to be occasioned by the city.”
The trial court further concluded that—
“The ordinance is severable and by reason thereof all portions of said ordinance not specifically declared to be unconstitutional and void are valid and existing.”
The plaintiff has appealed.
The appellant argues that a municipality may regulate a private business enterprise only pursuant to the reasonable nondiscriminatory exercise of its police power, and the ordinance in question is arbitrary, discriminatory, unreasonable and therefore void.
The appellee contends that the police power of the city to regulate the use of streets and alleys justifies the ordinance.
The parties do not appear to disagree as to the general principles of law by which the provisions of the ordinance must be measured. We will next consider the applicable law.
We first note that the trial court concluded:
“Community antenna television service is a commercial enterprise of nonpublic utility character.”
Both parties have accepted and adopted the conclusion. We therefore accept the statement as conclusive in this particular case without consideration or determination of the question.
The trial court also concluded:
“The Constitution of the State of Kansas, Article 12, Sec. 5, commonly known as the Home Rule Amendment authorizes the City of Wichita to carry out municipal functions without statutory authorization where that functoin is not restricted by the statutes of the State of Kansas.
“By virtue of the authority of the Home Rule Amendment the City of Wichita may enact an ordinance to regulate franchises and control community antenna television service for the protection of the public welfare and for the regulation and use of the public streets and ways.”
The appellee also suggests:
“. . . For the reasons previously discussed in this brief, appellee City had the power to enact the Ordinance by virtue of its police powers, as further supported by the ‘Home Rule Amendment,’ and that Ordinance was a reasonable exercise of those powers.”
The home rule amendment may have broadened the powers of municipalities but it did not extend to them the power to enact unreasonable ordinances under the guise of police power.
In Delight Wholesale Co. v. City of Overland Park, 203 Kan. 99, 453 P. 2d 82, we stated:
“It is conceded by appellant that since the adoption of the Home Rule Amendment (Art. 12, Sec. 5, Kansas Constitution) the cities have broad powers of self determination. It has always been the policy of this state to confer on cities the power to pass ordinances to protect the safety, health and general welfare of its citizens.
“However, while the police power is wide in its scope and gives a governmental body broad power to enact laws to promote the health, morals, security and welfare of the people, and further, a large discretion is vested in it to determine for itself what is deleterious to health, morals or is inimical to public welfare, it cannot under the guise of the police power enact unreasonable and oppressive legislation or that which is in violation of the fundamental law. (Little v. Smith, 124 Kan. 237, 257 Pac. 959; Gilbert v. Mathews, 186 Kan. 672, 677, 352 P. 2d 58.)” (P. 102.)
Although the issue is not stressed, the appellee does mention its general police power to pass ordinances promoting the public health and general welfare of the community.
We dispose of the issue, if there is one, with the statement that we find nothing in the business of a CATV system which would reflect on public health or morals. What the system brings into the home is first broadcasted by an authorized broadcasting company.
In McCulley v. City of Wichita, 151 Kan. 214, 98 P. 2d 192, we held:
“The oppressive and discriminatory character and effect of an ordinance on certain businesses is not cured by an ordinance which unreasonably and arbitrarily classifies foods, rather than dealers in foods, where the identity of businesses favored and businesses discriminated against is as readily ascertainable from the classification of foods as though the business actually had been named in the ordinance.
“A municipality has no authority, under its police power, to regulate arbitrarily and unreasonably the hours of private business, conducted in a reasonable manner, under the guise of promoting the public health or general welfare of the community.” (Syl. ¶¶ 3 and 4.)
Again in Gilbert v. Mathews, 186 Kan. 672, 352 P. 2d 58, at page 676 of the opinion:
“While there are no Kansas cases specifically in point, it is universally recognized that the business of an auctioneer and of selling merchandise at auction is a legitimate business which cannot be prohibited directly or indirectly. However, the right to sell at auction is not absolute but may be withheld unless there is compliance with reasonable regulations. The business is affected with a public interest and is subject to reasonable legislative restriction and regulation to prevent abuses and frauds. Requirements for the licensing of auctioneers and auctions as well as other regulations which are reasonable and not wholly arbitrary have long been upheld. The rgiht to regulate and license the business does not, however, include the right to prohibit it directly or, in effect, to adopt unreasonable and unfair regulations, or such regulations as would be oppressive or highly injurious to the business. (7 C. J. S., Auctions and Auctioneers, § 2, p. 1241; 5 Am. Jur., Auctions, §§ 3, 4 and 7, pp. 447, 448 and 450; and Annotations, 31 A. L. R. 299, 39 A. L. R. 773, 111 A. L. R. 473.)”
We must conclude that if the ordinance is to be sustained as a valid exercise of the police power, it must be in the regulation of the use and management of the public streets.
We had this same question before us in Watson v. City of Topeka, 194 Kan. 585, 400 P. 2d 689, and stated in the opinion on page 589:
“Before the ordinance may be sustained as a legitimate and valid exercise of the police power, it must bear a rational relationship to the rightful regulation of the use and management of the city streets. In State v. Consumers Warehouse Market, 183 Kan. 502, 329 P. 2d 638, we discussed the constitutional requirements of legislation enacted under the police power and, after holding that the purpose of the legislation there being considered fell within the police power of the state, we said:
“ ‘Notwithstanding the conclusion just announced, there still remains for determination whether the means chosen by the legislature are reasonably designed to accomplish the purpose of the Act, i. e., are its terms arbitrary, discriminatory, or demonstrably irrelevant to the legislative policy? This is the test of due process in the exercise of police power announced in Nebbia v. New York, [291 U. S. 502, 78 L. Ed. 940, 54 S. Ct. 505] . . .’ (p. 508.)”
We do not believe that the requirements and provisions in the ordinance heretofore summarized have any rational relationship to the use and rightful regulation of the city streets. They deal more with the management of the internal affairs of a CATV system which for our review here must be considered as a commercial enterprise.
We are also of the opinion that the ordinance puts it in the power of the city commission to grant or refuse a franchise at will. It assumes to clothe such officers with arbitrary power to be exercised merely at their will or caprice. It would appear that the city commission has chosen to so exercise such power because of the first four applicants a franchise was granted to the highest bidder and the applications of the other three were denied.
In Hudson Properties, Inc. v. City of Westwood, 181 Kan. 320, 310 P. 2d 936, we held invalid an ordinance on this ground and stated:
“This ordinance is invalid because it fails to establish a uniform standard for its application, in that ‘the Governing Body’ is made the final arbiter of property rights. This is an attempt to confer arbitrary power on the governing body of the city and is void. We held in Smith v. Hosford, 106 Kan. 363, Syl. ¶ 2, 187 Pac. 685:
“ ‘An ordinance which puts it in the power of tire officers of a city to grant a permit to build a garage, or to refuse such a permit at will, is unconstitutional and void, because it assumes to clothe such officers with arbitrary power to be exercised merely at their will or caprice, whether they are disposed so to exercise it or not.’ ” (p. 321.)
We must also agree with the trial court that the provision in the ordinance requiring the payment of a percentage of the income as a franchise privilege and the provision requiring free service to all hospitals, public and parochial schools located within the city and to municipal buildings are unreasonable and void. The measure of the charge and the cost of the free services is not reasonably apportioned to the business carried on measured by the expense to the city in supervising the use of the streets by a CATV system.
We are forced to agree with the appellant’s suggestion that the ordinance attempts to force those desiring a CATV system franchise, to subject themselves to regulation as a public utility and be subject to criminal prosecution for noncompliance.
Those wishing to review cases from other states holding similar ordinances invalid or inapplicable should see KAOK-CATV, Inc. v. Louisiana Cable T. V., Inc., 195 So. 2d 297; City of Waterville v. Bartell Telephone TV Systems, 233 A. 2d 711; Nugent v. City of East Providence, 238 A. 2d 758; Greater Fremont, Inc. v. City of Fremont, 302 F. Supp. 652; TV Pix, Inc. v. Taylor, 304 F. Supp. 459. See, also, Illinois Broadcasting Company v. City of Decatur, 96 Ill. App. 2d 454, 238 N. E. 2d 261, where the court held many of the conditions of the ordinance could not be exacted but might be agreed to not being against public policy.
Although many provisions of the ordinance are proper as regulation of the streets, they are so commingled with the unlawful exactions that they are not severable and the entire ordinance must fall.
As what is said leaves the city of Wichita without an ordinance regulating CATV service, a discussion of the other questions raised by appellant would be academic.
The judgment is reversed with directions to the trial court to enter a declaratory judgment holding ordinance No. 28-882 void and unenforceable, and permanently enjoining the enforcement thereof.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover actual and punitive damages for assault, slander, and wrongful arrest. The jury returned its verdict in favor of the plaintiff and allowed him $3,000 actual damages and $18,000 punitive damages. The defendants have appealed.
The plaintiff, Robert E. Sweaney, was retired from the Kansas City, Kansas, fire department on a disability pension as the result of a leg injury. On November 25, 1966, the date of the incident in question, he was employed by Howard Hart, d/b/a Hart Body Shop, located on Quindaro Boulevard in Kansas City. The defendants-appellant are the United Loan and Finance Company, Inc., and Jack Bagby, the vice president and manager of its office located at the northeast corner of the intersection of 9th and Minnesota Avenue.
Immediately east of the finance company office building is a small used car lot operated by Bagby in conjunction with the finance company. A few days prior to November 25, 1966, a 1965 Yellow Oldsmobile 442 was stolen from the finance company’s used car lot. The theft was reported to the police. The vehicle had a “dealer’s” license on it when stolen.
On the date in question, Hart directed Sweaney to deliver an automobile to Van’s Chevrolet Company in Mission, Johnson County, and there pick up a 1965 Yellow Oldsmobile 442 and return it to the body shop for repair. Coincidentally, the Yellow Oldsmobile Sweaney picked up also had a “dealer’s” license on it, but it was not the car which had been stolen from the finance company’s used car lot. Sweaney’s route back to the body shop required him to proceed west on Minnesota Avenue and past 9th and Minnesota in front of the finance company office. The traffic was heavy and Sweaney was driving slowly. Bagby, who was talking on the telephone, saw the Yellow Oldsmobile through the window of the office and shouted, “that’s it, that’s the car,” or words to that effect, and he and an employee of the finance company, Richard Pryor, picked up the hue and cry.
Bagby dropped the telephone and sped out of the office, running westerly down the center of Minnesota Avenue until he caught up with Sweaney in the Yellow Oldsmobile. Sweaney was proceeding in the north traffic lane nearest the curb — he had stopped about a half block west of the 9th and Minnesota Avenue intersection due to the traffic. He testified he heard a man shouting who later was identified as Bagby. By this time he had the car in motion. Bagby took hold of the left door handle and attempted to get into the car. He was not talking in a conversational tone, but was hollering and screaming at Sweaney and told him to “stop that car — stop that car.” Sweaney asked “what do you mean, stop this car,” and Bagby said, “you will find out.” Sweaney said, “what’s the matter with you,” and Bagby said, “you will find out.” When Sweaney could not ascertain what was happening, he became frightened and stopped the car. He left the motor running, quickly moved over to the righthand seat, opened the righthand door and jumped out into the street. He felt that more than one person was following him, with Bagby being the closest. In his haste, Sweaney tripped as he jumped out of the car and fell to the pavement injuring his left leg, but pulled himself up* and over the curb. He ran into the Western Auto Store, which was immediately north of the curb and across the sidewalk. When he was five or six feet inside the door, he looked back over his shoulder and saw Bagby just entering the door. Pryor was running into the store behind Bagby.
After Bagby entered the store, he hollered, “stop thief, don’t let that man get away.” The frightened Sweaney, with Bagby in hot pursuit, ran toward the rear of the store and took sanctuary behind the mail order counter where two* or three women clerks were working. When Bagby reached the mail order counter, Sweaney asked, “what’s the matter with you?” and Bagby again replied, “you will find out.” Sweaney said, “well what is happening?” and Bagby said ,“yo*u stole that car.” Sweaney said, “stole that car?” and Bagby said, “yes.” Bagby then hollered for someone to call the police, and said, “don’t let this man jump the counter, don’t let him get away.”
Elliott L. Teters, a sergeant of the Kansas City, Kansas, police department, was off duty, and was present in the store as an employed security man. He was the only disinterested eyewitness who testified at the trial. He estimated there were approximately 40 people in the store when the incident occurred. He saw Sweaney running down the aisle of the store with Bagby pursuing five or six feet behind — Pryor was running behind Bagby. The evidence was undisputed that Bagby, in a hard breathing voice, shouted for someone to stop Sweaney. The evidence was conflicting as to what Bagby said, but he admitted he was convinced that Sweaney was a thief and that the car was the car stolen from his lot. He admitted he told Sweaney, “don’t try to jump over the counter,” and not to leave. Bagby also admitted he told Teters that Sweaney stole the car he was driving and asked that the police be called.
■ Sweaney made two or three requests that someone call his boss or Van’s Chevrolet to verify the fact the car was not stolejn, but Teters denied his request.
Teters testified that while the men were ruiming in the store, Bagby shouted “stop, stop, you’re a thief,” several times. He also testified that after Sweaney got behind the counter, and after he showed Bagby his credentials as a police officer, Bagby said “call the police — he’s a thief, he stole a car,” in a loud tone of voice. By this time, there were approximately 20 to 25 people gathered in the vicinity of the mail order counter.
Bagby left the store to check the serial number on the car Sweaney had been driving. Before he left, Bagby stated words to Teters implying that Sweaney was a thief and that he was to be held until he (Bagby) got back. Bagby returned in a few minutes, and according to Teters, said in a low voice, “I’m sorry, it’s all a mistake.” Bagby then wanted to leave, but Teters required that he wait for the police district car to arrive so that a report of the incident could be made. By this time, the frightened Sweaney was mad. He demanded that Bagby be arrested, which the officers of the district car refused to do. After a report was made, Bagby returned to his office and Sweaney drove the Yellow Oldsmobile to the body shop.
Bad news travels fast. By the time Sweaney arrived at the body shop, his boss, Mr. Hart, and his fellow employees had already been informed he was in trouble with the police.
In seeking reversal, the defendants complain of several alleged trial errors. They first contend the district court erred in refusing their request to amend their answer so as to include the defense provided in K. S. A. 21-535b. The point is not well taken.
The statute (21-535b) is captioned “. . . defense to actions by persons detained for questioning,” and provides a defense to actions for assault, false arrest, false imprisonment, unlawful detention, defamation or slander, brought by any person by reason of having been detained for questioning on the premises of, or in the immediate vicinity of, a store or other mercantile establishment. The statute contemplates the detention of a person for questioning in a reasonable manner immediately after the suspected shop lifting and before the person leaves the premises, or the vicinity thereof— not several days later. It specifies “if there was reasonable grounds for believing that such person was committing the offense.” (Emphasis supplied.)
In the instant case, the theft of the car had been committed at least two days before and probably longer. Clearly, there was no question of immediate detention or pursuit of the person suspected, and the provisions of the statute which must be strictly construed, do not apply. This court has repeatedly held that amendments to pleadings are within the discretion of the district court (K. S. A. 60-215 [a]), and no error will lie unless such discretion is abused. (Trimble, Administrator v. Coleman Co., Inc. 200 Kan. 350, 358, 437 P. 2d 219.) There could be no question of abuse of discretion on the part of the district court, since the statute had no application to this action. The district court did not err in refusing the amendment.
The defendants next contend the district court erred in refusing their request to add the following to instruction No. 9, that “an action for wrongful arrest necessarily incorporates an assault, and if you find there was a false arrest, then you need not concern yourselves with whether or not there was an assault, in that an assault is a necessary ingredient of false arrest.” The contention cannot be sustained.
The defendants ignore the fact the actual physical assault, constituted by both acts and words on the part of Bagby, began at the time plaintiff was confronted in the street. The physical assault started at that moment with the result that plaintiff, fearful of Bagby’s acts, left the car in such a hurry that he fell in the street and injured his left leg. As to the false arrest — that came after the physical assault was over. The wrongful arrest occurred with the plaintiff’s movements being restricted within the confines of the store. An action in tort for false arrest necessarily includes an assault, but such assault in that situation is a technical assault. (Perry v. Kress & Co., 187 Kan. 537, 358 P. 2d 665; Black v. Clark’s Greensboro, Inc., 263 N. C. 226, 139 S. E. 2d 199; 35 C. J. S., False Imprisonment, § 10, p. 634.)
In the instant case, there are two separate and distinct acts in the chain of events. The act of false arrest following the assault upon the plaintiff, permitted the jury to assess damages for both torts.
The defendants claim the district court erred in refusing to instruct the jury that to constitute slander, the defendant “had to know the words he spoke of Sweaney were false at the time of being spoken, or the statement [was] made in such a willful and wanton manner as to constitute a disregard as to whether or not the statements were true.”
There was substantial evidence Bagby pursued the plaintiff into the store where at least 40 persons were present, saying, “stop thief, don’t let that man get away,” and also said, “you stole that car.”
In Koontz v. Weide, 111 Kan. 709, 208 Pac. 651, it was held that words charging a person with any felony are actionable per se. Words slanderous per se are those which intrinsically, without innuendo, import injury. They are words from which damage, by consent of men generally, flows as a natural consequence. (Bennett v. Seimiller, 175 Kan. 764, 267 P. 2d 926.) Thus, the question whether Bagby knew of the falsity of the statement is immaterial, and malice will be inferred. (Garvin v. Garvin, 87 Kan. 97, 123 Pac. 717; Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 64, 340 P. 2d 396, 76 A. L. R. 2d 687.) An apology or retraction is no bar to recovery, but lack of malice may be shown by such apology in mitigation of damages. (Koontz v. Weide, supra.)
The damage to Sweaney was done when he was publicly accused of stealing an automobile — a charge of the crime of larceny of a motor vehicle — which crime is punishable by imprisonment and hard labor. (K. S. A. 21-533, 21-534.) Instruction No. 10 was the slander instruction, and we cannot say from the record that the district court erred in any respect in refusing the defendants’ requested addition thereto.
The defendants complain the district court erred in failing to substitute or insert the words “may be” for the word “is,” and the word “nominal” before the word “damages” in the third sentence of Instruction No. 10, and to insert the phrase “known to be” before the word “false” in Instruction No. 11. The defendants lift from the instructions a word or two, or a phrase or two out of context and attempt to focus this court’s attention to those words or phrases. This court has said that the rule with respect to claims of instructional error advanced by a defendant as grounds for reversal is that the instructions must be construed together, and if taken as a whole they properly state the law, they are sufficient. (Hughes v. Atkinson, 188 Kan. 413, 419, 362 P. 2d 618, 94 A. L. R. 2d 309.) In Emmerich v. Kansas City Public Service Co., 177 Kan. 443, 280 P. 2d 615, upon a similar complaint, this court said:
“. . . Defendants contentions have been examined and it may be stated that one or two instructions, if isolated from the context of all, might be subject to criticism. However, taken as a whole, the instructions ably apprised the jury of the issues and the questions of law involved, and we find no error justifying a reversal.” (1. c. 450.)
See, also, Canfield v. Oberzan, 196 Kan. 107, 115, 410 P. 2d 339.
We have examined the court’s 21 instructions to the jury and are of the opinion they correctly stated the law so as to permit it to determine the issues involved, and we find no error justifying a reversal.
The defendants next contend the district court erred in permitting the witness Hart, Sweaney’s boss, to testify over their objection, that one Gene Byers, a bartender in a private club called “The Office,” received a telephone call from some unknown caller while Hart was present in the bar; that the bartender then turned to Hart and inquired, ‘What’s the matter with Bob? I just got a call that he was in trouble with the police.”
When the objection was made, counsel for the plaintiff stated its purpose was to show ‘“how quickly information of this kind spreads.” It is contended by allowing this evidence, the court precluded the defendants from inquiring from the person making such report as to how the purported caller found out about it, or whether in fact such a call was ever made.
The plaintiff contends the testimony was not objectionable since the telephone call reported the happening of an event, that is, Sweaney’s involvement with the police, which was a fact proven by other testimony, and not questioned by the defandants; and, further, that neither Hart nor the bartender was ever involved with the truth or falsity of the report. It is further argued the report to Hart was in the same category as if it had been a report of a fire at 9th and Minnesota — the happening of the event, not its truth or falsity.
Whether the objection was valid depends upon whether the testimony was introduced to prove the truth of Byers’ statement— the absent declarer. It appears rather clearly that such was not the purpose and that the testimony was introduced only to prove the happening of an occurrence — that Byers had received a telephone call that the plaintiff was in trouble with the police — not the truth of the report. In Malone v. New York Life Ins. Co. 148 Kan. 555, 83 P. 2d 639, we said:
“It has been said that the theory of the rule against hearsay is that when the utterance is offered as truth of the fact asserted, the credit of the assertor becomes the basis of inference and therefore can be received only when the assertor is on the stand and subject to cross-examination, but that if the utterance is offered, not as an assertion to evidence the matter asserted, but without reference to its truth, the rule does not apply. (See 3 Wigmore on Evidence, 2d ed., p. 770, § 1766. See, also, Bank v. Hutchinson, 62 Kan. 9, 17, 61 Pac. 443; Mills v. Riggle, 83 Kan. 703, 112 Pac. 617.). . .” (l.c. 558, 559.)
The evidence was the report of a fact — that a telephone call had been received that Sweaney was in trouble with the police. Hart testified he heard the statement — not that it was true. We think the evidence was not objectionable under the foregoing rule.
The defendants lastly contend the verdict of the jury was given under the influence of passion and prejudice and was so excessive as to constitute a confiscation of the defendants’ livelihood. They principally focus their argument on the amount of punitive damages awarded by the juiy. They urge the jury completely disregarded Instruction No. 16, that mitigating circumstances may be considered by it in determining the amount of punitive damages. They argue the record is void of any indication of personal ill will or spite on the part of Bagby toward Sweaney, and that the only evidence for the jury to consider was the activities of Bagby for a period of twenty minutes at the outside.
The facts of the case have been set forth and it is unnecessary to repeat them. No contention is made that Instruction No. 16 did not properly and adequately advise the jury of what it might consider in awarding actual damages, and also what it must find before awarding punitive damages, if any, and that in determining the amount of such damages, mitigating circumstances of the occurrence may be considered, and that it might award the plaintiff as punitive damages an amount not to exceed $40,000.
It is difficult to imagine a case which would justify a jury awarding substantial punitive damages more than the facts presented in this record. Bagby called Sweaney a thief several times in the store in the presence of approximately 40 people and cornered him like a common criminal behind the mail order counter where approximately 20 to 25 people quickly gathered, and there charged him with being a car thief; in addition, he had the police called. But that was not all. Previously, in the street, Bagby placed Sweaney in fear of injury to his person and caused him to jump out of the car and fall and injure his leg, which constituted an aggravated assault. Moreover, Bagby had Sweaney detained behind the mail order counter while he checked the serial number of the car, which was grounds for the jury to find Bagby guilty of wrongful arrest.
These facts do not stand alone — they stand together. All three of the wrongs were perpetrated by Bagby on Sweaney in his zeal to recover what he thought was his company’s property. Sweaney was doing his appointed job in a proper manner. He was suddenly confronted by Bagby who ignored Sweaney’s basic rights and took the law into his own hands in such a manner as to evince reckless indifference and disregard of the rights of others, or constituted such gross and wanton conduct as to justify the jury in awarding substantial punitive damages. Generally, the intentional doing of a wrongful act with full knowledge of its character, and without cause or excuse, is malicious and warrants an award of exemplary damages. (Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822; Allman v. Bird, 186 Kan. 802, 353 P. 2d 216; Kohler v. Kansas Power & Light Co., 192 Kan. 226, 387 P. 2d 149.)
In Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 241 P. 2d 1192, it was held there is no fixed rule by which the amount of punitive damages may be measured, and it was further held:
“In assessing punitive damages, the nature, extent and enormity of the wrong, the intent of the party committing it and generally all the circumstances attending the particular transaction, together with any mitigating circumstances tending to reduce the verdict or wholly defeating the damages may be considered.” (Syl. f 5.)
Punitive damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrongdoer for malicious, vindictive, or wrongful and wanton invasion of the injured party’s rights, the purpose being to restrain or deter others from the commission of like wrongs. (Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130.) In awarding punitive damages in this case, the jury undoubtedly considered that Bagby’s mistake concerning Sweaney was not restrained or deterred with respect to any other person who might find himself in Sweaney’s shoes in the future, when Bagby frankly admitted that come another time and place, he would do the same thing over again!
It was the province of the jury to weigh all the evidence and draw inferences and conclusions therefrom and it had the right to draw the inference that Bagby’s acts constituted conduct on his part such as to evince a reckless disregard of the rights of Sweaney and that he was conscious of the probable consequences of his wrongful acts. We cannot say that the award of punitive damages in this case shows passion and prejudice on the part of the jury, and we affirm its verdict for the amount of actual and punitive damages awarded the plaintiff.
The judgment is affirmed.
Price, C. J., dissents from the award of punitive damages.
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The opinion of the court was delivered by
Fromme, J.:
Max Potts was sentenced to two concurrent terms of not more than five years in the state penitentiary. He was found guilty by a jury of the unlawful possession of a pistol (K. S. A. 21-2611) and the unlawful maiming (K. S. A. 21-435) of Gene Abrams. Gene Abrams was shot in the arm.
The altercation which gave rise to the charges took place at Mr. Abram’s establishment (Marie’s Place) on east Murdock street in Wichita, Kansas. The defendant entered “Marie’s Place” about four o’clock in the morning on February 3, 1968. After talking with another customer about the price of bootleg whiskey the defendant was asked to leave. Mr. Abrams escorted the defendant to the front door. While Abrams was standing in the open front door, and the defendant was standing outside on the sidewalk, the defendant pulled a pistol and fired twice at Abrams. Both bullets missed their target. Abrams was attempting to telephone the police from inside his establishment when three additional shots were fired from outside of the building. Mr. Abrams testified he turned toward the plate glass window when the first shot was fired through it and watched the defendant fire two additional bullets. The second bullet hit Abrams in the arm. He described the gun used by the defendant in firing the first two shots as a .38 caliber pistol with a six inch barrel and a white handle. Abrams and the defendant had been acquainted for some time. They were not on friendly terms.
The other customer in “Marie’s Place” at the time testified he had a conversation with the defendant that morning. He heard Mr. Abrams ask the defendant to leave. The last time he saw them they were approaching the front door. At that time he went to the restroom. While there he heard the first shots fired. As he was leaving the restroom the remaining shots were fired through the window. He hid in a comer near the “jukebox” and did not see who fired the shots.
Officer Hill of the Wichita Police Department arrested the defendant at his home that morning shortly after 7:00 o’clock. He did not find the gun.
With this factual background we can consider the errors specified by defendant. He contends error was committed during the trial by refusing to admit proffered testimony that J. W. Trotter owned a similar pistol and had an opportunity and motive for committing the crime.
In State v. Neff, 169 Kan. 116, 218 P. 2d 248, it was stated:
“Where the state relies on direct rather than on circumstantial evidence for conviction, evidence offered by defendant to indicate a possible motive of someone other than the defendant to commit the crime is incompetent absent some other evidence to connect such third party with the crime.” (Syl. f 7)
In our present case the state relied upon direct evidence, testimony o£ eyewitnesses, that defendant shot Abrams with a pistol at close range.
J. W. Trotter testified he saw the defendant on the sidewalk after the shots were fired. Trotter was going to a nearby pool hall. The defendant was headed in the opposite direction which was away from “Marie’s Place”. He spoke briefly with the defendant and noticed the gun in defendant’s possession. Trotter denied owning or possessing a pearl handled .38 caliber revolver.
The defendant proffered testimony and statements previously made by Abrams to the effect that he had seen a similar pistol in the possession of J. W. Trotter, that the defendant was J. W. Trotter’s henchman or enforcer and that Abrams closed his business after this incident. This proffered testimony was not admitted during the trial.
It was not error to exclude the proffered statements of Mr. Abrams. The evidentiary value of these statements in the face of the direct testimony regarding the shooting is questionable.
When the state relies on direct rather than circumstantial evidence for conviction, evidence offered by defendant to indicate a possible motive of someone other than the defendant to commit the crime is irrelevant absent other evidence to connect such third party with the crime.
Ownership of the pistol is not an essential element of either of the crimes charged. The key issue was who fired the gun. The proffered evidence would at best only tend to implicate another person in defendant’s crime. It would not disprove defendant’s guilt.
The case of State v. Scott, 117 Kan. 303, 235 Pac. 380, cited by defendant, is distinguishable on the basis of what has been quoted herein from State v. Neff, supra. In the present case the state does not rely on circumstantial evidence for conviction. In Scott evidence to support conviction was entirely circumstantial.
Defendant next contends the court erred in failing to instruct the jury on the defendant’s theory of the case. The only testimony as to defendant’s theory of the case was by the defendant. The other proffered testimony was properly excluded by the court. Defendant admitted he had an argument with Abrams but stated he left “Marie’s Place” at Abrams’ request and went home. He testified he did not shoot at Abrams and heard no shots while he was there that morning.
In State v. Runnels, 203 Kan. 513, 456 P. 2d 16, it was said:
“Generally the theory of the accused is adequately set forth in the instructions by including a converse charge under which the jury may find the accused not guilty if any essential element of the crime is not proven, provided such converse charge is preceded in the instruction by a recitation of all essential elements required to be proven, in language the ordinary layman on a jury can understand.” (Syl. ¶ 2)
We have examined the instructions. The essential elements of the two crimes were separately set forth in language the ordinary layman could understand. The jury was instructed by including a converse charge under which they could find the defendant not guilty if the crimes were not proven beyond a reasonable doubt. In addition the court gave an instruction on the defense of alibi by which the jury was advised if the evidence of alibi raised a reasonable doubt about the defendant’s presence at the time and place of the commission of the crimes charged this would be sufficient to justify an acquittal. The instructions were adequate.
Defendant’s third specification of error relates to the publication of a news article which appeared in a Wichita newspaper after the trial of defendant had begun. The article referred to the defendant as a convict who was being returned from the penitentiary to face the charges, and it set forth facts about two prior convictions.
The trial court during the trial refused permission to inquire of the members of the jury to determine if any of them had read the article which appeared in the newspapaer. The trial court properly denied defendant’s motion to inquire. An inquiry of this nature during the trial might place prejudicial matter before the jury and create a basis for a mistrial. Obviously the trial of a case cannot be interrupted for inquiry on each article published by the news media. There was no attempt made at the hearing on the motion for new trial to show that any member of the jury was aware that such an article had been published. (See State v. Eldridge, 197 Kan. 694, 421 P. 2d 170.) A motion to inquire during the ¡trial is not a proper method to determine if members of a jury are aware of prejudicial articles published by a newspaper during the trial. (State v. Malone, 194 Kan. 563, 571, 400 P. 2d 712.)
Prior to the first trial adjournment the court admonished the jury that they must decide the case on what they would hear, see and learn in the courtroom. They were admonished not to' discuss the case nor permit others to discuss it in their presence. They were further admonished not to “read anything you might have occasion to read about what purports to be the facts of this case”. In the absence of evidence to the contrary this court on appeal will assume the jury followed the lower court’s admonitions. (State v. Eldridge, supra; State v. Wright, 203 Kan. 54, 56, 453 P. 2d 1.)
It is true the written instructions of the court given at the close of evidence did not specifically contain an instruction that the jury must consider only the evidence which was introduced and admitted during the trial. However, they were instructed to consider the evidence and all the instructions of the court in their deliberations and not be influenced by either passion, prejudice or sympathy and to return a just and true verdict according to' the law and the evidence. The substance of that instruction has been previously approved. (See State v. Gates, 196 Kan. 216, 410 P. 2d 264.)
The defendant neither requested additional instructions on this subject nor objected to those prepared and given by the court and he is now in no position to complain of failure to give a more limiting instruction in regard to what was to be considered as evidence. (State v. Wheeler, 195 Kan. 184, 403 P. 2d 1015; State v. Sims, 192 Kan. 587, 389 P. 2d 812. See also State v. Ringler, 194 Kan. 133, 135, 397 P. 2d 390.) When the trial court submits all of its instructions to counsel for both sides and the defendant neither requests additional instructions nor objects to those prepared by the court on a specific subject the defendant cannot complain of the substance of those instructions on appeal.
We have examined the record in light of all errors specified by defendant and find no prejudicial error.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an automobile negligence action brought by the plaintiff to recover damages for the loss of a leg sustained when his motorcycle collided with the rear end of an automobile driven by the defendant, Mira Groff. The case was tried to the court and judgment was entered against the defendants for the sum of $19,050 and costs. Appeal has been duly perfected.
The basic questions presented are: (1) Whether there is sufficient evidence to sustain the trial court’s finding that Mira Groff was negligent; and (2) whether the plaintiff was guilty of contributory negligence as a matter of law which was a proximate cause of the collision.
The evidence disclosed that on the night of the accident Timothy R. Baze (plaintiff-appellee) was driving a new Honda motorcycle which he had owned about two weeks. The cycle was in good working condition. When Baze got off work he picked up Ron May and then met four other youths with motorcycles. Baze and his companions then started to proceed east on U. S. Highway No. 160 enroute to Bob’s Club located two miles east of Parsons, Kansas. It was dark, the weather was clear, and the pavement was dry. The speed limit on the highway was 50 m. p. h. at the scene of the accident.
The motorcycles were noisy because they did not have baffles in the exhaust pipes. There were five motorcycles in the group as they proceeded east on U. S. Highway No. 160 at a speed estimated at 40 to 50 m. p. h. All motorcycles were traveling in the same lane of traffic with Jim Colvin in the lead. Approximately 150 feet behind Colvin, Bill Schneickert followed near the shoulder of the highway. Baze, with whom Ron May was riding, was about a cycle length behind Schneickert and near the center of the road in the eastbound lane of traffic. Sam Ringle followed behind the plaintiff at some distance, and Doyle Saye brought up the rear. Baze testified it was good practice to ride in staggered fashion so as to avoid a collision with the back of another cycle.
The relative positions and noise of the five motorcycles apparently gave one of the defendants’ witnesses the impression the plaintiff and his companions were racing. There was testimony, however, that there was no racing or cutting up or anything of that nature on the highway as the boys traveled eastward. The plaintiff explained that when you are out on the highway and getting up speed, you lean your shoulders toward the front of the motorcycle to resist wind and bugs. This was the manner in which they were riding the cycles.
At the time of the accident Mira Groff (defendant-appellant) was proceeding east of Parsons on Highway No. 160 enroute to the miniature golf course, located on the north side of the highway, and had stopped her car on the highway at the entrance to the golf course. The car in front of her going in the same direction was also turning left across oncoming traffic into the golf course. After the car in front of Mrs. Groff had made its left turn, Mrs. Groff had to wait for a vehicle coming from the east in the opposite lane of traffic before she could turn into the driveway of the golf course. It was while Mrs. Groff was in this stopped position in the right-hand lane of traffic on the highway that the accident occurred.
As Baze approached the scene of the accident he testified as follows:
“As we were going east, Colvin was in the lead and I seen a slight commotion from his motorcycle and then as I neared the car I seen the left rear tail light and when I was even closer to it I realized that it wasn’t moving. So I was left with the alternative of either going left or to the right side of the car, but there was a truck coming, so I had to go to the right, because I was too close to it to stop and there wasn’t enough room to miss it, so I nicked her right side.
“. . . As you are going east, your lights on the motorcycle are going slightly down. There were no lights on the right rear of the car being driven by Mrs. Groff nor were there any signal light or brake lights on either side of the rear of the automobile.
“I couldn’t go off the shoulder to the right because of Schneickert and I couldn’t lock my brakes or I would have slid sideways under the car. So I stopped as much as I could before turning as sharp as I could. I didn’t want to run into Bill. I had caught up with him by this time and I attempted to go between him and the car.
“The Groff car was stopped in the center of the south lane of the highway. There was no room in the south lane of the highway for me to stay on the highway without hitting the car. I couldn’t go left because there was a big truck coming — a diesel truck. I noticed the truck just before the accident but I didn’t have any reaction time at that time. It was just before the impact that the truck went by. The truck had its headlights on.
“Q. What effect, if any, did that have upon your seeing or not seeing the automobile stopped on the highway?
“A. It would have definitely affected it, because it would draw more attention to them than to a small tail light.
“Q. If there had been another tail light or brake light on that automobile, would you have been able to have seen them in order to avoid the collision?
“A. Yes, I would.
“Q. What if there had been turn indicators on, what effect would that have?
“A. I could have avoided it.”
Schneickert testified he was between 25 and 50 feet from the Groff automobile when he first saw that taillight, and that he came within three feet of hitting the car himself.
Colvin had taken to the ditch on the right side of the road and missed hitting the Groff automobile.
Mira Groff testified that before stopping she signaled with her arm for a left-hand turn, and there was no traffic immediately behind her. Schneickert testified he did not see Mrs. Groff signal.
The sheriff testified he investigated the accident and found that the left taillight on the Groff car was burning and the right taillight was broken. A check of the brake lights and the directional lights indicated that neither light system would operate. This testimony concerning the defective lights on the rear of the Groff vehicle at the time of the collision was corroborated by several witnesses.
Baze sustained severe injuries to his left ankle. After extensive hospital and medical treatment for approximately three years, his left leg was amputated about seven inches below the knee. It was stipulated that his hospital bills totaled $6,050.10.
The case was tried to the court and judgment was entered for the plaintiff after previously overruling the defendants’ motion for a directed verdict and judgment at the close of the plaintiff’s evidence. The defendants’ motion for a new trial and to set aside the findings of fact were also overruled.
In making its decision the trial court found:
“The court . . . finds generally in favor of the Plaintiff and against the Defendants. That Defendant, Mira Groff, negligently stopped the automobile of Defendants in the highway without visible and proper signal of her intention to stop; and without visible and proper signal of her intention to make a left turn; and was at the time of the collision driving said automobile with defective brake lights and defective turn indicators; all of which said negligence of the Defendant, Mira Groff, was the proximate cause of Plaintiff’s injuries and damage. . . .”
The appellants first contend the trial court erred in finding that Mira Groff was negligent in stopping her automobile on tire highway without visible and proper signal to stop and without visible and proper signal to make a left turn.
The appellants argue the “Groff car was forced to stop in the highway because of a car ahead of her stopping and a car coming toward her going the opposite direction and she gave an arm signal of this stopping and turning and the trial court said this was negligence.”
In ruling on a motion for a directed verdict the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. (Williams v. Benefit Trust Life Ins. Co., 195 Kan. 579, 583, 408 P. 2d 631.)
Therefore, under the rule to be applied in the instant case, the court in testing the sufficiency of the plaintiff’s evidence shall consider all of the plaintiff’s evidence as true, shall consider that favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to the plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between direct and cross-examination, and give the evidence of the plaintiff a liberal construction resolving all doubt against the defendants, and if so considered there is any evidence to support the findings of the trier of the facts, such findings must be sustained.
The appellants’ reasoning proceeds on the premise that Mira Groff exercised reasonable care by merely extending her “arm for the turn” before stopping.
The statutory duty relative to stopping on the highway is stated in K. S. A. 8-547 (c), which reads:
“(c) No person shall stop or suddenly decrease tire speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.”
K. S. A. 8-549 deals with the methods of giving stop or turn signals. The pertinent portion of this statute reads:
“. . . (1) Left turn — hand and arm extended horizontally. . . . (3) Stop or decrease of speed — hand and arm extended downward. . . .”
The recent case of Johnston, Administratrix v. Ecord, 196 Kan. 521, 412 P. 2d 990, examines in depth the duty of a motorist who stops on the highway.
In the instant case the plaintiff’s evidence disclosed the defendant, Mira Groff, stopped on a two-lane highway at night, where vehicles could be expected to be traveling 50 m. p! h. intending to turn into a private entrance rather than at an intersection of two public roads. Under the rule heretofore stated, the finding of the trial court that Mira Groff was negligent in stopping her vehicle on the highway without proper signal of her intention to stop is sustained by the evidence.
The record would support a finding that Mira Groff gave no arm signal whatever. But even assuming that she did give an arm signal for a left turn, there is no evidence, nor does she claim, that a proper arm signal was given of her intention to stop on the highway.
The appellants next contend the trial court erred in concluding as a matter of law that it constitutes negligence to operate a motor vehicle with defective brake lights and defective turn indicators.
The thrust of the appellants’ argument on this point is that K. S. A. 8-549 authorizes the giving of turn and stop signals by aim. It is argued there is no statutory requirement that a motor vehicle have brake lights or turn indicator lights.
An extended discussion of the appellants’ argument on this point would be purely academic in view of our conclusion on the first point.
The appellants next contend die trial court erred in holding that recovery by the plaintiff was not barred by his own negligence in not having his motorcycle under control, in not seeing what he should have seen, and in not slowing the same down in order to avoid the accident.
The appellants argue that the two cycles which were ahead of Baze, and closer to the stopped automobile than Baze, both saw the Groff automobile and did not strike it; that it was only Baze who, having more time than either of the two cycles ahead of him, failed to observe the road ahead, and is also the only cycle which did not stop and did not turn aside. It is argued that nothing the Groff car did or did not do prevented Baze from seeing because the other two cycles on the road ahead of him did see. The appellants contend upon the evidence presented by the record that Baze was not using due care — that he was not looking ahead, that he was leaning over in a lying-down position with no windshield and no goggles, and that he just was not looking.
The appellants cite Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239; and Orr v. Hensy, 158 Kan. 303, 147 P. 2d 749, for the proposition that it is the duty of one driving an automobile upon the public highway to look ahead and see what is there to be seen in his line of vision, and in case of accident he will be conclusively presumed to have seen what he could and should have seen in the proper performance of his duty. The appellants also cite Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 134 P. 2d 681, for the proposition that the driver of a motor vehicle must keep his vehicle under such control as will enable him to articulate his speed with his ability to stop or turn aside within the range of his vision provided by his headlights.
Finally it is argued by the appellants that Baze’s negligence contributed to his injury and was a proximate cause thereof. (Citing, Crawford v. Miller, 163 Kan. 718, 723, 186 P. 2d 116.)
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. The duty of care between persons using the public streets or highways is mutual, and any such person may assume that others traveling on the public streets or highways will comply with the obligation imposed upon them. A driver of a motor vehicle has the right to act upon the assumption that every person whom he meets will exercise ordinary care and caution according to the circumstances and will not negligently and recklessly expose himself to danger, but rather make an attempt to avoid it. (Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359.) The same rule applies to the operator of a motorcycle on the public highways.
In determining whether as a matter of law a plaintiff is guilty of contributory negligence precluding his recovery, all of the testimony favorable to the plaintiff, together with all the reasonable inferences and deductions to be drawn therefrom, must be accepted as true, and if there is any evidence to support the finding made by the trier of the facts that the plaintiff is not guilty of contributory negligence, the finding must be sustained. When the plaintiff’s evidence does not disclose his contributory negligence as a matter of law, the trier of the facts has an absolute right to disbelieve and disregard all evidence tending to establish its existence. (Drake v. Moore, 184 Kan. 309, 336 P. 2d 807; and Deemer v. Reichart, 195 Kan. 232, 404 P. 2d 174.)
Here the plaintiff was driving down a two-lane highway at a lawful rate of speed after dark with the headlight on his motorcycle illuminated, following Schneickert’s cycle which was about 10 feet ahead of him, and he approached the Groff vehicle which was stopped on the traveled portion of the highway with only the left rear taillight burning. A large diesel truck was approaching from the opposite direction with its headlights illuminated. Schneickert managed to avoid a collision, but only by about three feet, and wound up in the ditch. Colvin also avoided a collision by going into the ditch on the right side of the highway. The plaintiff applied only his rear brake because, if he locked his front wheel brake while making an effort to turn aside to avoid a collision, his motorcycle would slide under the Groff car. Baze testified if the Groff vehicle had another taillight or brake light or turn signal illuminated, he could have seen it and avoided the accident.
In view of this evidence, reasonable minds could differ on the question of contributory negligence, and therefore such question was properly determined by the trier of the facts.
This is not a case where it can be said as a matter of law that Baze was driving in such a manner that he could not, under the circumstances, have controlled his vehicle within the range of vision of his headlights, nor is it a situation where Baze drove blindly ahead after he knew or should have known that he had no vision. (Deemer v. Reichart, supra.)
Every motorist realizes from common experience that the passing of an approaching automobile with its bright headlights turned on, very frequently, if not always, causes a driver’s vision to be temporarily impaired to some extent. (Newman v. Case, 196 Kan. 689, 413 P. 2d 1013.)
A motorist driving on a highway at a reasonable rate of speed at night is not required, when an approaching vehicle appears with bright headlights, to stop his vehicle because the range of his vision is thereby impaired. If this were required, it would be impossible to travel at any distance on two-lane highways at night. The question under these circumstances resolves itself into one of reasonable care under all the circumstances. (Anderson v. Thompson, 137 Kan. 754, 756, 22 P. 2d 438.)
In Drennan v. Penn. Casualty Co., 162 Kan. 286, 176 P. 2d 522, the court said:
“Furthermore, we have recognized qualifications or exceptions to the general rule that a driver must be able to stop his car within the clear distance ahead. For instance, if he is confronted with a sudden emergency not of his making — such as the sudden entrance of another car from a side road — it would be wholly unreasonable to say, and we have not said, that negligence is shown, as a matter of law, if he is unable to stop his car in time to avoid a collision. It is perhaps inaccurate to say that such situations constitute exceptions to the rule. It might be more accurate to say that the rule was never intended to apply except to situations which an ordinarily prudent man would or should anticipate. In this class of ‘exceptions,’ so-called, is the case where a driver is suddenly confronted with blinding lights of an approaching car. The inapplicability of the general rule to such a situation was recognized in the recent case of Towell v. Staley, 161 Kan. 127, 166 P. 2d 699, which is closely analogous to the one before us, and in which citations of numerous cases equally pertinent here may be found. In that case there was also a collision with a truck parked on the highway, without lights. Blinded by the lights of another car, the plaintiff did not see the truck until he had passed the lights of the other car. Giving the plaintiff the benefit of a favorable interpretation of the evidence, we said: (p. 136.) ‘The inference in the present case favorable to the plaintiff is that he was only blinded as he passed the bright lights,’ and refused to hold him guilty of contributory negligence as a matter of law. This is in line with the sound rule that questions of negligence are ordinarily for the trier of the facts, and that such questions should not be withdrawn from the jury except where tire acts of commission or omission have been such that a court can say that it is clear that no man of ordinary prudence would have committed them under the attendant and undisputed facts and circumstances. . . .” (pp. 289, 290.)
The above rule was affirmed in Winfough v. Tri-State Insurance Co., 179 Kan. 525, 297 P. 2d 159, Syl. ¶ 2, as follows:
“The general rule is that the operator of a motor vehicle is required to articulate his speed with his ability to stop within the range of his vision, and not to strike or collide with obstructions or other vehicles in his lane of traffic, but there are exceptions to that rule arising out of a sudden change in the operator’s situation but not caused by his own failure or neglect, such as blinding lights of oncoming cars, or changes in grade, causing the obstruction to be hidden.”
Essentially this is a fact case which was fairly tried and submitted to the trial judge for decision. The court found generally for the plaintiff on all issues. Upon review we find no error in the record.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
The defendant, Elmer McDaniel Duke, has appealed from his conviction of the offense of unlawful possession of a pistol after having previously been convicted of grand larceny (K. S. A. 21-2611).
When his case came on for trial June 13, 1968, defendant waived a jury, and the matter was tried to the court. Defendant stipulated he possessed a pistol, as charged, leaving at issue his former conviction.
The state’s evidence consisted of a certified copy of records on file with the Alabama Board of Corrections which included a copy of “Judgment entry and Sentence” certified by the clerk of the circuit court of Russell county, Alabama, showing defendant had been convicted in 1946 of grand larceny and sentenced to the penitentiary for fifteen months. The journal entry recited the defendant appeared before the court in person “and by Attorney,” at which time he pleaded guilty as charged. After introduction of the exhibit, defendant’s counsel requested a continuance until he could secure copies of records from the office of the clerk of the circuit court in Alabama which he claimed indicated defendant had not had the benefit of counsel. A continuance was denied; whereupon, the defendant took the stand, admitted his prior conviction in Alabama, but denied that he had an attorney when he entered his plea of guilty. Defendant then renewed his motion for a continuance until he could secure the additional records from the Alabama court, but the motion was denied. Thereupon, the court found the defendant guilty as charged.
On July 3, 1968, the court heard oral argument on defendant’s motion for a new trial, or in the alternative, for acquittal. By this time defendant’s counsel had received the additional records of the Alabama proceedings and introduced them into evidence. Among the records was a docket sheet on which a space was provided for the listing of the parties’ attorneys. The only entry was “A. S. Borders, Solicitor.” Likewise, nothing was said about the defendant being represented by counsel in the court’s minutes which were signed by the circuit judge. Defendant’s motion was overruled and the trial court sentenced him to a term not exceeding five years in the Kansas State Penitentiary pursuant to K. S. A. 21-2611.
Although on appeal defendant urges that the district court erred in denying his requests for continuance, he concedes that at the hearing on his motion for new trial he presented all the evidence he would have presented, had the continuance been granted. Since the court had the opportunity to consider and weigh the additional records in light of the evidence already admitted in the initial proceedings, there was no reversible error as a result of the court’s rulings on the motions for continuance.
The sole question remaining for determination is whether or not the state sustained the burden of proving beyond a reasonable doubt that the defendant had a prior grand larceny conviction in Alabama at which time he was represented by an attorney.
Proof that a defendant has previously been convicted in this state, or elsewhere, of one of the enumerated offenses is a necessary element of the crime defined by K. S. A. 21-2611. Among the offenses listed is that of grand larceny, of which defendant was admittedly convicted in Alabama. We have held that records certified by a warden or director of a penal institution in which defendant served may be used as proof of a previous conviction for the purpose of enhancing punishment under K. S. A. 21-107a. (State v. Eaton, 199 Kan. 610, 433 P. 2d 347, and authorities therein cited.) We know of no reason why a prior conviction should not be provable by the same type of evidence when a defendant is charged with violation of K. S. A. 21-2611.
Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733, established the rule that the right to counsel guaranteed by the sixth amendment was applicable to the states by virtue of the fourteenth amendment, thus making it constitutionally impermissible to try a person for a felony in a state court unless he had an attorney or validly waived one. That ruling has been given retroactive application.
In Burgett v. Texas, 389 U. S. 109, 19 L. Ed 2d 319, 88 S. Ct. 258, the United States Supreme Court made it clear that a conviction obtained in violation of Gideon was void and could not be used against a person either to support guilt or enhance punishment for another offense. That case dealt with a Texas prosecution wherein the indictment under Texas recidivist statutes also alleged prior convictions, one of which was a Tennessee conviction for forgery. Two records of the Tennessee conviction were offered in evidence by the prosecution — the first of such records showing that the de fendant had not been represented by counsel, and the second record omitting any reference to counsel or the waiver thereof. The supreme court held that each of the records on its face raised a presumption that defendant was denied his right to counsel and, therefore, the Tennessee conviction was void. The court admonished that presuming waiver of counsel from a silent record is not permissible.
As a result of Burgett, a record of prior felony conviction which is silent or ambiguous concerning the presence of counsel or the valid waiver thereof is presumptively void, and it alone cannot form the basis for establishing a valid conviction as an element of K. S. A. 21-2611, or for imposing enhanced punishment under the habitual criminal act (K. S. A. 21-107a). (See, Oswald v. Crouse [No. 215-68, 10th Cir., Dec. 31, 1969], 420 F. 2d 373.)
The rule announced by this court in State v. Engberg, 194 Kan. 520, 400 P. 2d 701, cert. denied, 383 U. S. 921, 15 L. Ed. 2d 676, 86 S. Ct. 899, to the effect that a defendant is precluded under the full faith and credit clause of the United States Constitution from attacking a foreign conviction on the basis he was denied right to counsel no longer has constitutional vitality to prevent a collateral attack upon the judgment. The failure of a state court to observe the due process requirement of right to counsel deprives that court of jurisdiction and renders a judgment of conviction void. (See, McCarty v. Hudspeth, 166 Kan. 476, 201 P. 2d 658.) A judgment is always subject to collateral attack for lack of jurisdiction. (Thorn v. Salmonson, 37 Kan. 441, 15 Pac. 588.) A collateral attack of a judgment rendered in violation of the rule established in Gideon v. Wainwright, supra, does not offend the principle of full faith and credit. The full faith and credit clause does not apply to a judgment rendered in a sister state without jurisdiction. (Paul v. Butler, 129 Kan. 244, 282 Pac. 732.) If the court of the sister state had no jurisdiction, its judgment is void and is not entitled to full faith and credit. (See, Smith v. Crouse, 298 F. Supp. 1029 [D. C. Kansas, 1968], Affirmed, 413 F. 2d 979 [10th Cir., 1969]; Oswald v. Crouse, supra; Goodrich, Conflict of Laws, §209, p. 395 [4th Ed., 1964].) Accordingly, State v. Engberg, supra, and those decisions adhering to the rule expressed in syllabus ¶ 2 of the opinion are overruled.
Here, unlike in Burgett and Engberg, we have a journal entry of judgment and sentence showing on its face defendant had counsel at the time he pleaded guilty in Alabama. The presumption in favor of the validity of the foreign judgment and of the truth of the recitals in the journal entry attached. ' (Thorn v. Salmonson, supra.) The burden was upon the defendant to show the journal entry was incorrect and that he, in fact, did not have the benefit of counsel at his prior conviction. (State v. Jefferson, 204 Kan. 50, 460 P. 2d 610; K. S. A. 60-414 [a].)
The trial court, as trier of the facts, apparently concluded the defendant’s evidence did not clearly show the inaccuracy of the recital “and by Attorney,” and hence, the presumption of validity was not overcome. Contrary to defendant’s contention, we will not reweigh the evidence or pass on the credibility of the defendant’s testimony; that was the function of the trial court. In considering the sufficiency of evidence to sustain the conviction, this court looks only to evidence favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence, the conviction stands. (State v. Scott, 199 Kan. 203, 428 P. 2d 458.) Here, there was sufficient, competent evidence to support the trial court’s determination of a valid prior conviction at which defendant was represented by counsel.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the defendant in a criminal action from a conviction of burglary in the second degree pursuant to K. S. A. 21-520 and sentence imposed under the habitual criminal act. (K. S. A. 21-107a.)
The only questions presented on appeal are whether the appellant received sufficient notice that the state intended to invoke the provisions of the habitual criminal act, and whether he was prejudiced by the denial of a personal copy of the transcript of the trial.
Inasmuch as the criminal proceedings resulting in the appellant’s conviction are not challenged, a brief statement of the facts will suffice.
The record discloses that at approximately 1:00 a. m. on March 18, 1968, the Isley Elementary School located in Wichita, Kansas, was burglarized by the appellant and another colored male identified as Arthur T. Walker. Walker pleaded guilty to the charge against him, but the appellant demanded and was given a jury trial. Throughout the trial he was represented by counsel and on appeal is represented in the Supreme Court by court-appointed counsel.
The appellant’s trial commenced on October 23, 1968, and resulted in a verdict of guilty which was returned on the 25th day of October, 1968. Upon receiving the verdict the state served written notice upon the appellant and his counsel of its intention to invoke the provisions of the habitual criminal act (K. S. A. 21-107a), a copy of which was filed with the clerk of the district court.
Pursuant to request the court gave the appellant five days, or until October 30,1968, to file a motion for a new trial, and the court stated if the motion was filed, it would be heard on Friday, November 8, 1968, at 2:00 p. m.
Thereafter a motion for a new trial was filed, and the court after hearing the motion on the 8th day of November overruled it. The state then requested leave to present evidence of the appellant’s prior felony conviction, but before the state could present its evidence, the appellant, through his attorney, stipulated that he had a prior felony conviction. This prior felony conviction was in the district court of Sedgwick County, the same court in which he was tried in the instant case.
The trial court found from the record and other competent evidence the appellant had a prior felony conviction, and that proper notice had been given to invoke the habitual criminal act. The court thereupon sentenced the appellant to the state penitentiary at Lansing, Kansas, there “to be confined for a period of not less than ten (10) years nor more than twenty (20) years for the charge of Second Degree Burglary, contrary to K. S. A. 21-520 and in accordance with K. S. A. 21-523 and K. S. A. 21-107a as provided by law.”
Appeal has been duly perfected.
The appellant contends he did not have sufficient notice of the state’s intention to invoke the habitual criminal act.
A similar contention was made in State v. Peterson, 198 Kan. 239, 424 P. 2d 552, where the court said:
“We find nothing to indicate that four days advance notice did not give the appellant ample time to prepare his defense under the habitual criminal act. The record fails to indicate any objection on this ground or any contention that more time would have enabled appellant to prepare a defense. . . .” (p. 241.)
The question of reasonable notice as to the habitual criminal act arose in Goodwin v. State, 195 Kan. 414, 407 P. 2d 528, where the court said:
“Reasonable notice of an intent to invoke the provisions of the habitual criminal statute is required, but no particular form thereof is necessary. The reason for such notice to be given is to afford an opportunity for a full and complete hearing as to whether the accused is properly subject to be sentenced under the act. This is a right which is subject to waiver.” (p. 419.)
The court, following the principle announced in Goodwin v. State, supra, has said when a defendant freely admits the former felony convictions and does not object to the increased sentence, notice is waived and the judgment will not be set aside. (Perrin v. State, 198 Kan. 650, 426 P. 2d 39, and cases cited therein.) The same principle was announced in Lieser v. State, 199 Kan. 503, 430 P. 2d 243.
On the facts presented by the record herein, the appellant’s contention that he was prejudiced by failure to receive sufficient notice of the state’s intention to invoke the habitual criminal act has no merit for two reasons. First, the appellant had more than sufficient time to prepare a defense to any evidence of a prior conviction which the state might present. He had thirteen days after notice was served upon him to prepare this defense. This was adequate notice. Second, he did not object to the notice at the time of sentencing, and he made no effort whatever to collaterally attack the prior conviction on record in the same court in which he was tried for second degree burglary in the instant case. Instead he waived the right to defend by stipulating to the fact that he had a prior felony conviction as alleged by the state. He was represented by able counsel at the trial who advised and consulted with him on every major point.
The appellant next contends the trial court erred in refusing to send a copy of the trial transcript and files on record to him at the penitentiary in Lansing.
The appellant raised this question, and the previous question, in the trial court by what he denominated a motion for nunc pro tunc order on December 19, 1968. The trial court overruled this motion after hearing, and the journal entry discloses a stipulation to the effect that the original transcript of the proceedings herein was filed with the clerk of the district court on the 21st day of January, 1969, and the appellant’s present court-appointed counsel had the transcript and court files in his possession since that time. (The journal entry is dated February 27, 1969.)
The court found the appellant’s rights had not been violated, and that the court had no duty to send a copy of the transcript and court file to the appellant in prison, when the same was available in the clerk’s office to his counsel.
The cases upon which the appellant relies have no application to the facts presently before the court. Here the appellant’s attorney had the trial transcript and court files in his possession and available for use in perfecting the appellant’s appeal. It must be assumed appellant’s counsel consulted with the appellant concerning matters in the record, and that he was fully informed and advised on all matters contained therein.
On the record here presented the appellant has not disclosed how he would have benefited from having a copy of the transcript and court files in his personal possession or how his rights were prejudiced.
We must conclude the points asserted by the appellant on appeal in this criminal action have no merit.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Harman, C.:
In this mandamus proceeding plaintiff sought restoration to public office and damages for discharge from the office. He appeals from summary judgment rendered against him.
The proceeding is a sequel to Will v. City of Herington, 201 Kan. 627, 443 P. 2d 667, involving the same parties, which must be briefly reviewed for proper perspective of the present action.
On October 21, 1966, Marvin Will, appellant herein, filed a petition in the district court of Dickinson county claiming compensation from the city of Herington on the basis he had been assistant chief of police of that city and had been illegally discharged from the office on September 16, 1966. Issues were joined and on March 28, 1967, the trial court held in Will’s favor, ruling he was properly appointed to but improperly discharged from the office in question, and further, he was entitled to the stated salary for the office until properly discharged. It should be noted the term of the office which Will claimed was one expiring May 15, 1967.
Immediately after the trial court’s decision the city took two actions: It appealed the decision to this court (about which more later), and, on April 4, 1967, it held a hearing and purportedly discharged Will from the office of assistant chief of police.
On May 1, 1967, Will attempted to take an appeal under K. S. A. 60-2101 (a) from the city commission’s order of dismissal but on June 26, 1967, the district court dismissed the proceeding for want of jurisdiction. No appeal was taken from this order and that proceeding is of no further moment.
On July 14, 1967, Will instituted the present action by filing in the district court a petition in mandamus challenging the legality of his April 4, 1967, discharge. On August 28, 1967, at the request of the city the trial court stayed further proceeding in the mandamus action until further order of the court. This running controversy between Will and his erstwhile employer thus came to a standstill until July 13, 1968, at which time this court announced its decision in the appeal taken by the city from the trial court’s March 28, 1967, ruling (Will v. City of Herington, supra). Suffice it to say we affirmed that judgment. We pointed out Will was claiming pay only to the period ending May 15, 1967, the date his term of office expired. Our mandate of this judgment was in due coruse filed in the office of the clerk of the district court; on August 7, 1968, the city paid into that corut the full net amount of salary due Will up to May 15, 1967; on the same date Will received that amount from the court clerk in satisfaction of the judgment.
The next step in this litigation was on October 18, 1968, when the city filed its motion for summary judgment in Will’s mandamus action. The trial court sustained this motion and Will has now appealed from that order to this court.
In support of the trial court’s ruling the city urges application of the familiar doctrine of res judicata, that is, when a matter goes to final adjudication the parties to that litigation are bound not only as to matters which were litigated but also as to matters which might have been litigated. We do not think appellant’s suit may be so easily disposed of for the reason the essential identity of claims for relief was lacking. In the first proceeding appellant’s claim was based upon his alleged wrongful discharge of September 16, 1966; in this suit he challenges the propriety of his removal occurring April 4, 1967. Hence the doctrine of res judicata is inapplicable. We scarcely need point out the latter discharge could be held valid despite the adjudicated invalidity of the former.
This does not, however, dispose of the appeal and a closer analysis of appellant’s petition is necessary to determine if summary judgment was properly entered.
As indicated, the petition was one in mandamus, seeking to restore appellant to the office of assistant chief of police of the city of Herington for the remainder of his term. Appellant specifically disclaims any entitlement to the office beyond May 15, 1967. His petition was filed July 14, 1967. The difficulty is obvious —appellant’s term of office had already expired when the petition was filed and the city could not then restore him to his office as requested. The object to be accomplished by mandamus is performance of a clear, specific, legal duty. Mandamus does not lie where the duty, the performance of which is sought to be compelled, is impossible of performance (4 Hatcher’s Kansas Digest, rev. ed., Mandamus, § 9, p. 18; 55 C. J. S., Mandamus, § 14, p. 39; 34 Am. Jur., Mandamus, § 37, pp. 831-832; see also Riggs v. City of Beloit, 199 Kan. 425, 429 P. 2d 821).
In his petition appellant requested attorney’s fees for prosecuting the action. In Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 438 P. 2d 732, we held that in a mandamus proceeding if the refusal to perform the duty is found to be unreasonable, the plaintiff’s attorney’s fees are recoverable as damages under K. S. A. 60-802 (c). It necessarily follows, however, that if the mandamus action fails then entitlement to attorney’s fees must fail also. The rule is, in the absence of statute, attorney’s fees of litigants are not allowable as damages (Myers v. Strauss, 171 Kan. 91, 229 P. 2d 774).
Appellant in his petition also requested in general terms the allowance of damages, without alleging their specific nature. By no stretch of imagination can the petition be construed as alleging a tort action. It simply alleged the removal from office was improper in several respects, and asked the prescribed pay for the remainder of the term. The claim alleged is closely analogous to one for damages for breach of contract of employment and is essentially of that nature. In such an action the measure of damages is compensation for the loss which a fulfillment of the contract would have prevented or the breach of it has entailed (25 C. J. S., Damages, § 74, p. 843). In Krehbiel v. Goering, 179 Kan. 55, 293 P. 2d 255, where damages were sought for breach of contract of employment, the rule was tersely stated:
“Prima facie the measure of damages was the amount of the monthly salary stipulated in the contract.” (p. 58.)
We think the foregoing measure of damages appropriate under the facts pleaded in appellant’s petition. The loss he sustained by reason of his discharge, assuming its impropriety, was the amount of his salary up to the expiration of the term of office. Concededly, when summary judgment was entered against him, appellant had already received that amount. Thus the trial court properly terminated this protracted litigation and its judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Henry Edward Burgess, Jr., was convicted of first degree robbery and larceny of an automobile. He has appealed.
Evidence on behalf of the state disclosed that Burgess first met his victim, a male cosmetologist by the name of Dan R. Ohlerking, approximately May 30, 1968, at the Jolly Jug, a Wichita tavern. The following day Burgess moved into Ohlerking’s house, at the latter s invitation, and lived there continuously until the date of the alleged offenses.
On the morning of June 4, 1968, Burgess phoned Ohlerking at his work, advising the latter he was leaving for work as a bartender in an undisclosed Wichita tavern. Later that morning Ohlerking drove to his home where he was accosted by a Freddie Welch, also known as Thomas David Neely, who placed a switchblade knife at his throat and backed him into the kitchen where Burgess proceeded to whack him over the head with a riot baton or police billy.
Ohlerking was bound, gagged and blindfolded and then deposited in a clothes closet. Burgess and Freddie thereafter departed the scene in Ohlerking’s Mustang car, taking with them a goodly assortment of their victim’s personal belongings. The following noon Mr. Burgess was observed by Albuquerque officers attempting to pawn Ohlerking’s Garrard turntable. Burgess attempted to flee but was soon apprehended in the basement of a nearby hotel. Mr. Ohlerking’s $600 ring, wrist watch, wallet and credit cards were all found on the person of Burgess. Additional property belonging to Ohlerking was found in the Mustang which Burgess had left in the street.
A key to a motel room was also found on Burgess. A search of the motel revealed some twenty banlon shirts belonging to Ohlerking, along with eight pairs of slacks. Both Burgess and Freddie, the latter having later been apprehended following a railroad track out of town, were returned to Wichita where the pair took up residence at the Sedgwick County jail.
As it has heretofore been recited, the state’s evidence clearly negatives the defendant’s contention that the verdict returned by the jury was contrary to the evidence. The defendant asserts that his guilt was not proved beyond a shadow of a doubt or by an overwhelming preponderance of the evidence, but neither of these suggested standards has ever been ordained as a legal criterion for determining guilt. The traditional test which is applicable to criminal prosecutions within this jurisdiction is whether guilt of the accused has been established beyond a reasonable doubt. (State v. Patton, 66 Kan. 486, 71 Pac. 840; State v. Wolfley, 75 Kan. 406, 89 Pac. 1046; State v. Killion, 95 Kan. 371, 148 Pac. 643.)
It is quite true that the defendant presented evidence to support his denial of guilt. Freddie Welch testified that Burgess was not his accomplice in the commission of the crimes perpetrated against Ohlerking; that he was assisted by a bosom friend known to him as “Jim”; that he and “Jim” picked up Burgess, who was a total stranger, as Burgess hitchhiked his way near Oklahoma City; and that “Jim” disappeared from view at some unknown time while he, Freddie, slumbered in repose.
The defendant, himself, also was a witness. He denied phoning Ohlerking on that ill-fated morning. About noon, he said, he took a bus to Oklahoma City arriving there about 4 p. m.; that he hiked to highway 66 where he was picked up by Freddie, whom he did not know, and who was alone in the car; that the two of them went to a motel; that after recognizing Ohlerking’s car and personal belongings, he left the motel room while Freddie was immersed in sleep, intending to return the pilfered property to Ohlerking, its rightful owner; and that he set out to raise money for the drive back to Wichita.
This evidence was properly admitted for the jury to consider in determining whether the guilt of the defendant had been established beyond a reasonable doubt. However, this court’s appellate function is not to decide whether guilt was shown by the evidence beyond a reasonable doubt, but to ascertain whether there was, in the evidence, a basis for a reasonable inference of guilt. (State v. Scott, 199 Kan. 203, 428 P. 2d 458; Lloyd v. State, 197 Kan. 389, 416 P. 2d 766.) The requirements of that test appear to have been fully met in this case.
The defendant raises a number of points as violating due process, none of which we deem meritorious. First, he complains that his bond, set at $10,000, was exorbitant. We think otherwise. As we understand the purpose of our statutes requiring bond from persons accused of crime, it is to assure their presence at the time and place of trial. (Craig v. State, 198 Kan. 39, 422 P. 2d 955.) The city of Wichita was not the native heath of Mr. Burgess. He came briefly to rest within its corporate borders from the sovereign state of Alabama. After a few days tryst with “Danny” Ohlerking, he heeded the ancient advice advanced by Greeley and, with much of his host’s belongings, headed west for parts unknown. The size of the bond seems not unreasonable in view of the defendant’s love of wanderlust. We discern no violation either of the Eighth Amendment to the Constitution of the United States or of § 9 of the Bill of Rights of the Kansas Constitution.
Mr. Burgess next complains that he was not provided with counsel until ten days had elapsed from the date of his return to Wichita. The record reveals that counsel was appointed well in advance of the preliminary examination and that appointed counsel was present with and represented the defendant at such examination. Under such state of facts, prejudice may not be presumed absent a showing to such effect.
Nor is there any substance to the charge that failure to provide the defendant with a transcript of the preliminary hearing impinged upon his constitutional rights. Neither our statutes nor our procedural rules impose such an obligation on the state, and no prejudice to the substantial rights of the defendant has been shown on this score.
Finally, the defendant alleges that prejudicial error resulted from certain testimony given by a Mr. Edgar L. Williams, Freddie’s uncle. The facts are these: While testifying in his own behalf, the defendant was asked to relate, on redirect examination, what had occurred during a visit between himself and Mr. Williams at the county jail. In substance, Burgess testified that Williams had implied that he, Burgess, forced Freddie to commit the crimes with which the two were charged and that he should, if possible, clear Freddie because Freddie had a future ahead of him. Burgess further testified that in reply he told Williams that he had no intention of admitting the crime, which he did not commit, and letting Neely (or Freddie) go free.
Mr. Williams was called by the state in rebuttal and he testified that Burgess’ part of the conversation went like this: That there was no need for two men to take the rap when one had a family and the other did not; that he, Burgess, was a three-time loser and would take the rap and let Freddie go free because he had a family.
Objection to this evidence is focused on the reference to defendant’s past record. We think, however, the evidence was both admissible and competent to rebut testimony brought out by the defendant himself on his own redirect examination. The defendant opened up the subject, and evidence relating to the substance of the conversation could be shown in contradiction to the version which he recounted. (K. S. A. 60-420; Jacks v. Cloughley, 203 Kan. 699, 457 P. 2d 175.) Moreover, when the trial court offered to give a covering instruction concerning this evidence, the offer was rejected by the defendant. Certainly under these circumstances, and in view of the strong web of guilt woven by the state, no prejudice can be presumed.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
The defendant, James Griffiin a/k/a Charles Wilson, was convicted by a jury of robbery in the first degree. (K. S. A. 21-527.) After denying a motion for a new trial, the district court sentenced defendant to confinement in the Kansas State Penitentiary for a term of not less than twenty nor more than forty-two years pursuant to K. S. A. 21-530 and 21-107a. This appeal ensued.
The testimony of the state’s witnesses established that during the afternoon of August 22, 1968, the defendant, along with approximately ten to fifteen other young men, entered the Wichita Brokerage Company, a retail store, in which a wide variety of goods was displayed for sale. Defendant approached Lon Stockton, assistant manager of the store, who at the time was on the north side of the store, and inquired about the price of a charcoal grill. Before Stockton had a chance to reply, defendant stated, “My God they’re high; must be made of gold.” Defendant then ordered Stockton to lie down on the floor and Stockton complied.
Michael Hardacre, an employee of the company, was near the front of the store waiting on customers when he heard the cash register ring and saw a person trying to open it. Hardacre approached the register and inquired what the person was doing, Hardacre was ordered to open the cash register. After opening the register he was hit on the head with a gun. Hardacre testified he was told to lie down on the floor and while lying on the floor saw the individual paw through the cash register. Hardacre was unable to positively identify defendant, although he testified that he thought defendant was one of the men at the scene.
Both Stockton and Hardacre testified that the group scattered over the store and loaded their arms with various items of merchandise taken from the display racks.
Stockton and Hardacre stated the men were only in the store a few minutes. About five minutes after the group had left the store a young man entered and gave Stockton the license number of an automobile. Stockton wrote the number on a piece of paper, which was admitted into evidence, but Stockton’s account of the young man’s statement was excluded. The license number was given to the police and as a result the automobile bearing the license was stopped shortly after the robbery. Defendant was a passenger in the automobile and was taken into custody.
In the early morning of the day after the robbery a lineup was arranged at the Wichita Police Station and defendant was positively identified by Stockton.
Bill Winegarner, an employee of the Stockyards Lumber Company adjacent to the Brokerage Company, testified that he saw two cars pull into the lumber company parking lot behind the Brokerage store and that a number of individuals got out of each car; that some of them went through the parking lot on the north side of the store and some went around the other side. In a few minutes the individuals ran back to their cars and left at a high rate of speed. He described one of the cars as a “dark green Thunder Bird,” the automobile in which defendant was later arrested.
Warren Brown, a Captain in the Wichita Fire Department, testified that a police officer told him about the robbery and gave him a description of the “green Thunder Bird.” Brown had seen an automobile answering that description in a driveway about one-half block from the Fire Station. Brown saw an individual step out of the car and carry something into the house. On Brown s tip the police went to the house described by him, received permission to search and found a number of articles which were later identified as some of those taken from the Brokerage Company Store.
Defendant testified that he had taken the day off from his work for the purpose of reporting to his parole officer and to get some other things taken care of. He described his whereabouts during the day and claimed that he was never at the Wichita Brokerage Company during the day in question.
The principal point relied on by defendant in his appeal concerns the identification of him by Stockton during the trial. Defendant claims that he asked for counsel prior to the lineup and although an attorney was called and attended the lineup, defendant says he had no opportunity to consult with him at the time and was thus deprived of the effective assistance of counsel during the lineup proceedings. Defendant contends the lineup proceedings tainted the in-court identification by Stockton and when it was admitted, over his objection, reversible error was committed. In support of his position defendant cites United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951, and Stovall v. Denno, 388 U. S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.
After the police had taken into custody six suspects, who were thought to have been involved in the mass robbery, a lineup was arranged. Detective Harlan McClaskey was in charge of the lineup and described it in great detail in his testimony. McClaskey testified that when he informed defendant of the lineup he advised him that he was entitled to have an attorney present and that he could phone one if he wanted to. Defendant replied that he did not have an attorney. At this point, McClaskey contacted the county attorney’s office and asked that a member of the Wichita Bar Association be contacted and asked to attend the lineup. Lee Woodward, an experienced member of the Wichita Bar, was called and attended the lineup.
McClaskey testified that the witnesses Hardacre and Stockton were present and that each was given a piece of paper to put their respective names and addresses on; that they were told that if they wanted any phrase spoken by any person in the lineup to write it on the paper. McClaskey testified that he advised the witnesses that no one in the lineup would be referred to by name or in any way other than by the number of their position in the lineup.
McClaskey further testified that he in no way suggested to the witnesses to select any particular person, nor did he indicate in any way who the suspects were. McClaskey testified that no one consulted with the witnesses other than himself at any time during the lineup; that the witnesses did not consult with each other; and that they were not seated near each other in the room.
McClaskey also testified that the witnesses made their identification by writing it on the paper and that they never indicated orally within the hearing of each other how they made their identifications.
Apparently, two showup lines were viewed by the witnesses. Photographs of each line are included in the record. The photographs disclose that the lines were made up of young Negro males of approximately the same age, height and weight and that all were dressed in street clothes.
All of the details of the lineup appear to have been shown in the record. There is nothing shown which reflects any unfairness or partiality, or that any suggestion of identity was indicated to the viewing witnesses. In other words, there is nothing shown in the make-up or arrangements for the lineup which approached a violation of due process of law, nor does defendant specify anything in this regard. He merely makes the broad assertion that the presence of Mr. Woodward was insufficient to meet the demands of constitutional due process laid down in Wade and Gilbert.
After hearing the testimony of McClaskey and arguments of counsel on the point, the trial court reviewed the testimony and ruled as follows:
“The Court: Well, as I understand the officer’s testimony, they started to conduct this lineup. He asked the defendant — this defendant Griffin if he desired an attorney at the lineup. The defendant said that he didn’t have an attorney but he did desire an attorney to be present at the lineup for him. And, then, as I understand the Officer McCIaskey’s testimony further, Mr. Foster, a deputy county attorney, requested Mr. Lee Woodward, a member of the Wichita Bar, to be present on behalf of the defendant at the lineup and Mr. Woodward was present at the time of the lineup. And as I understand the testimony further, Mr. Woodward was present at the lineup having been requested by Mr. Foster to be there on behalf of Mr. Griffin and he was there throughout the lineup. Mr. Woodward at the time of the lineup had not been previously appointed by any Court to represent Mr. Griffin for any purpose. It’s going to be my ruling that Mr. Woodward was present at the lineup [to] represent Mr. Griffin and was there as I understand it for the sole purpose of making observations for the benefit of Mr. Griffin; and, in my opinion, the fact that he did not have a talk — an opportunity to converse with Mr. Griffin before the lineup is immaterial. Mr. Woodward, so far as this Court knows, is still a practicing attorney in this city and has been available to the defendant or to the defendant’s court-appointed counsel, Mr. Kirby, ever since the date of the lineup and still is if they desire to make any use of his observation or his knowledge pertaining to the lineup. So, Mr. Kirby’s motion will be at this time overruled.”
While it may be argued that the lineup proceedings here do not comply with every minute requirement that could be gleaned from the opinions in Wade and Gilbert, we are firmly convinced that nothing occurred which even approaches a violation of constitutional due process. Both Wade and Gilbert involved lineup proceedings which were conducted after the defendants had been indicted and after counsel had been appointed for them. In each case, the police failed to notify counsel of the lineup and no effort was made to secure the presence of substitute counsel.
There is some authority that Wade and Gilbert apply only to post-indictment confrontations. The basis of such reasoning stems from an inference which is drawn from the language of the United States Supreme Court itself in the later case of Simmons v. United States, 390 U. S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967, where the court, referring to the lineup cases, stated:
“. . . The rationale of those oases was that an accused is entitled to counsel at any ‘critical stage of the prosecution,’ and that a post-indictment lineup is such a ‘critical stage.’ . . .” (pp. 382, 383.)
The Supreme Court of Illinois in the case of The People v. Palmer, 41 Ill. 2d 571, 244 N. E. 2d 173, appears to have adopted the view that Wade and Gilbert apply only to post-indictment confrontations. A holding to the contrary is pronounced in People v. Fowler, 1 Cal. 3d. 335, 82 Cal. Rptr. 363, 461 P. 2d 643.
The point as presented here does not require an interpretation of Wade and Gilbert with respect to their application to a preindictment lineup, since we believe the declared purpose and intent of those decisions was substantially fulfilled by the presence of Mr. Woodward.
As we have heretofore indicated, the trial court found that Mr. Woodward was present at the lineup on behalf of defendant and, even though he had not been appointed by any court to represent defendant, his knowledgeable observations as a lawyer were available to the defendant and to his court-appointed counsel ever since the date of the lineup.
The fear expressed in Wade of the inability of an accused to reconstruct an unfair lineup is groundless under the facts and circumstances shown in the instant case. We have no doubt that had there been any occurrence or circumstances suggesting unfairness or impartiality, Mr. Woodward would have been called and it would have been his duty to supply any observation pertaining thereto.
In the instant case there were ten to fiften robbers at large. The need of early identification was urgent in order to effect a successful police investigation. To compel the investigation to await the formal court appointment of counsel would result in seriously handicapping the police in their efforts to identify and apprehend participants in the robbery.
Under the circumstances shown to exist, we believe the record clearly evidences a conscientious effort on the part of the police officers to afford due process of law and to protect the constitutional rights of defendant. Even though the need for early identification clearly indicated, the police took the time and trouble to arrange a lineup, rather than to pursue the less dependable method of showing suspects singly to persons for identification.
There is nothing in this record concerning the lineup confrontation that indicates anything unnecessarily suggestive or conducive to the irreparable mistaken identification warned against in Stovall v. Denno, supra.
Defendant contends testimony of McClaskey offered in rebuttal by the state was erroneously received into evidence.
After the close of the state’s case, defendant took the witness stand and testified as to his whereabouts during the day of the robbery. The testimony of McClaskey on rebuttal showed that statements made by defendant soon after his arrest were inconsistent with portions of his testimony given on the witness stand. Before testifying as to the statements, McClaskey related the warnings given to defendant as to each of his constitutional rights in compliance with the requirement of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974. McClaskey testified that defendant acknowledged his full understanding, made no request for counsel and voluntarily proceeded to give McClaskey the statements concerning his whereabouts.
Under the circumstances related, the testimony of McClaskey offered on rebuttal to impeach the testimony of defendant was a proper use of prior inconsistent statements. (State v. Aguirre, 167 Kan. 266, 206 P. 2d 118.)
Defendant contends the hearsay rule was violated by the admission into evidence of a piece of paper upon which Stockton had written a license number of the Ford Thunderbird in which defendant was later apprehended. The license number was given to Stockton within a few minutes (not more than five) after the robbery.
Conversation between Stockton and the young man who saw the license of the Thunderbird was not admitted. Stockton could not identify the young man and had not seen him since the robbery. Thus, the young man was unavailable as a witness. The number was written on the paper by Stockton within five minutes after the robbery without any showing of premeditation or design. We believe the paper was admissible as a part of the res gestae. (Drake v. Moore, 184 Kan. 309, 336 P. 2d 807.) Moreover, the license number was not used to prove any element of the crime but merely to explain Stockton’s later action when he gave the number to the police. (State v. Lopez, 182 Kan. 46, 318 P. 2d 662.)
Likewise, defendant’s objection to the admission of the automobile registration, showing the automobile for which the tag number was issued, is without merit. The registration merely furnished a link in the chain which led to defendant’s arrest.
We have examined the instructions in their entirety and find the trial court fully and correctly instructed the jury as to all material questions of law involved in this case. Defendant’s complaints with respect thereto are wholly without merit.
The verdict is supported by sufficient competent evidence and defendant’s motion for a new trial was properly overruled.
The judgment is affirmed.
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The opinion of the court was delivered by
Abbott, J.:
General Motors Corporation (GM) and Don Hattan Chevrolet, Inc., (Hattan) appeal from judgments against them and in favor of Joseph and Carla Farrell (Farrells).
The Farrells purchased a 1986 Chevrolet Astro Van from a friend. The friend had purchased the van new (but not from Hattan) and had also purchased the General Motors Protection Plan (GMPP) service contract. The Farrells purchased the GMPP from their friend for $700 and paid GM the $25 transfer fee. Although we will refer to GM and GMPP throughout the opinion because different duties and contract provisions apply, it should be kept in mind that the GMPP is a contract with GM so that GM is the defendant and the one who pays any judgment based on a breach of contract or statutory violation whether we speak of GM or GMPP.
On October 23, 1988, while the Farrells were driving the van, one of their daughters bumped the power door lock switch. The locks began locking and unlocking, but stopped when Joseph Farrell jiggled the switch. Two days later, when Carla Farrell left the house in the morning, she discovered that a fire had damaged the van s interior during the previous night. The front panel of the passenger door and the seat on the passenger’s side were burned, and the molding along the door and the console had melted. The passenger side door lock switch was on the floor. Hattan ultimately repaired the damage for $3,827.
The Farrells had the van towed to Hattan. As noted earlier, the van had not been originally purchased from Hattan. On October 26, the Farrells went to Hattan to discuss the fire. They spoke with the assistant service manager, Pat Patterson. They told Patterson they were suspicious that the door locks were responsible for the fire. The Farrells asked whether the GMPP would cover the loss and asked whether they would be provided with a replacement vehicle, pursuant to the GMPP contract. The GMPP provided for $30 a day, not to exceed a total of $150 per repair, for a replacement vehicle.
Patterson told the Farrells that the Farrells’ own insurance adjuster would first have to look at the van. He told them that they would also have to determine the cause of the fire to determine if the GMPP would cover the loss. Patterson said he would call the GM branch office in Kansas City to find out if the GMPP covered the loss. Patterson testified he called the office that administers the GMPP and confirmed that the Farrells’ van had GMPP coverage. He testified: “I told them that we had a fire and they told me that they do not cover fire damages or consequential damages of fire, and even if it had been a covered part, only that part that was covered would be covered by the GMPP.”
The GMPP provided, in part: “We will not pay anything under this Agreement: . . . [f]or a Failure caused by collision, fire, theft, freezing, vandalism, riot or explosion.”
The next day Joseph Farrell stopped to talk with Patterson. Patterson said that the Farrells’ insurance adjuster had inspected the van and authorized repairs and payment. The Farrells were insured with Farmers Insurance Group. The Farrells had full coverage and Farmers Insurance Group would have paid to have the Farrells’ van repaired. Patterson told Joseph Farrell that “[t]hey didn’t determine the cause of the fire and GM wasn’t interested in investigating it.” Patterson said it was a problem for the Farrells’ own insurance. The Farrells testified they were concerned about the cause of the fire for safety reasons.
The Farrells had elected not to have replacement vehicle coverage loss, without a deductible, so if Farmers had paid the loss, it would not have furnished a replacement vehicle.
The 1986 Warranty and Owner’s Assistance manual that came with the van has a page entitled “Owner Assistance” that outlines a “3-Step Satisfaction Procedure.” The first step is to discuss the problem with a member of the dealership management. The second step is to “contact the Chevrolet Zone Office closest to you.”
The Farrells called the GM Zone Office and were referred to an 800 number in Michigan. The Farrells called the number and advised GM of the problem and asked whether there would be coverage under the GMPP.
GM told the Farrells that nothing could be done about a rental car or anything else until the fire was investigated. The Farrells were told that someone from the zone office would investigate the fire and that the Farrells should contact the dealership and tell them not to start repairs.
When the Farrells told Patterson what they had done, Patterson got angry and told them that if they did not want him to do the repairs to take the van off the lot. The Farrells called Jim Hattan, owner of Hattan, and related Patterson’s comments to him. Hat-tan told the Farrells to deal with Jack Tanner, the service manager, in the future.
On October 31, Hattan called Carla Farrell and advised her that no one from the zone office was going to come to investigate the fire, but, instead, the damaged parts would be shipped to Kansas City, along with photos of the damage. Hattan said GM had denied coverage, so a replacement vehicle would not be available, but that he would rent them a car for $15 a day. The same day, the Farrells advised their insurance company, Farmers Insurance Group, that they did not want it involved since they felt it was an electrical fire that should be covered by the GMPP.
On November 6, the Farrells took the third step of the three-step satisfaction procedure — they drafted letters to GM, Hattan, and the Better Business Bureau, requesting arbitration. They sent these, along with the arbitration request form found in the owner’s manual. On November 21, the Farrells received a letter from GM thanking them for writing and referring them back to the GM office in Kansas City. No mention was ever made by GM of arbitration. No one ever advised the Farrells of the results of any fife investigation.
Next, the Farrells received a call from Tanner asking them to meet that evening. Tanner presented the Farrells with a release and told them that if they signed it, GM would pay the cost of the repairs. The release released GM, Chevrolet, and its dealers “from any and all claims and causes of action for any injuries, losses and damages to my person and/or property which may have been caused by, or at which any time arise out of, or in connection with the incident involving my 1986 Chevrolet Astro Van and its power door locks.” It also listed the mileage of the van as of the date of the lire. Tanner stated that GM was not admitting that it was the door locks that caused the fire.
The Farrells asked whether a free replacement vehicle would be provided. Tanner told them he would check. The next day, Tanner called the Farrells and told them that a rental vehicle would be provided. Tanner told the Farrells that the offer by GM to repair the van and provide a rental car was a goodwill gesture and was not being handled as a claim under the GMPP. No limit was placed on the length of time a replacement vehicle would be furnished to the Farrells.
The Farrells refused to sign the release. At trial, they testified that the reason they refused to sign was that they wanted to know the cause of the fire, and, on appeal, contend they also had concerns about the scope of the release.
The next contact the Farrells had with Tanner was on November 28 when he called to tell them that they had to sign the release no later than December 2 or GM was not going to accept responsibility for the repairs. Shortly thereafter, the Farrells gave their insurance company permission to close its files on the matter.
On January 6, 1989, the Farrells received a letter from Tanner advising them that the repairs to the van were completed and directing them to bring in a money order for $3,827. The letter said that there would be a $5 a day storage charge assessed from January 3 until the van was picked up.
There is conflict in the record over whether the Farrells authorized repairs. Hattan testified that on October 31, when the Farrells spoke with him on the phone, the Farrells authorized repairs. Patterson testified that the Farrells’ insurance company authorized repairs. The Farrells denied they ever authorized repairs. The repair order shows the Farrells authorized repairs. This issue was not raised in the pleadings or in the pretrial order and is presented by the Farrells on appeal largely to support their argument that Hattan was not entitled to a mechanic’s lien.
The van was returned to the Farrells in July 1989, after this suit was filed, pursuant to an agreement between the attorneys. At trial, some other relevant information was presented. Tanner had written a letter dated January 18, 1989, to a GMPP representative in Detroit, stating that he believed the cause of the fire was an electrical failure caused by a malfunctioning power door lock. Coverage was denied under the GMPP “because GMPP did not get involved in fire damage claims.”
Hattan testified that “from day one this looked like some sort of electrical failure in the van.”
It also became apparent at trial that GM had been having similar trouble with these vans. Hattan had repaired a 1986 Chevrolet Astro Van for a fire in its right front passenger door three to four months prior to the fire in the Farrells’ van. GM disclosed that it had investigated at least 11 similar fires.
At trial, the Farrells made the following allegations upon which they recovered:
1. Breach of contract: The fire was caused by an electrical failure and was covered by the GMPP;
2. GM breached an implied warranty of merchantability;
3. Hattan and GM converted the van (by refusing to return it after repairs were made);
4. GM committed an unconscionable and deceptive practice under the Kansas Consumer Protection Act (KCPA, K.S.A. 50-623 et seq.)
a. by selling a GMPP that limited implied warranties;
b. by seeking a release that waived implied warranties; (This allegation was made against Hattan also.)
c. by failing to disclose that the fire was caused by an electrical failure. (This allegation was made against Hattan also.)
The jury found that the fire was caused by an electrical failure; that the electrical failure breached GM’s implied warranty of merchantability and fitness for a particular purpose with damages of $3,000 for loss of value and $2,500 for loss of use; that GM engaged in deceptive acts and practices toward plaintiffs with damages of $1; that Hattan engaged in deceptive practices against plaintiffs with damages of $1,000; and that plaintiffs are entitled to recover against Hattan for wrongful deprivation and loss of use of the van, with damages of $7,000. The jury also found that Hattan acted in a malicious or willful and wanton manner (in converting the van) and awarded punitive damages.
The trial court added that, because of the finding that the fire was electrical, it found that GM breached the GMPP and entered damages for the cost of repairs in the amount of $3,872.17 and towing costs of $35. (GM,. pursuant to an agreement, had paid this sum to Hattan and was given credit for this amount, and it is not in dispute on appeal.) The trial court also awarded attorney fees pursuant to the KCPA in the amount of $22,612.50. It also found that GM had committed two unconscionable acts under the KCPA and awarded $2,000 per violation. The trial court found that Hattan had committed one unconscionable act under the KCPA and awarded a civil penalty of $2,000. The trial court assessed costs against the defendants in the amount of $1,803.40. Finally, the trial court granted punitive damages against Hattan in the amount of $60,000. The total judgment was for $103,951.90.
GM does not appeal from the trial court’s judgment on the verdict awarding repair costs and rental car payments under the GMPP and warranty claims. GM and Hattan do appeal the judgment as to the KCPA claims, the conversion claim, and a ruling the trial court made with respect to mitigation of damages.
The appellants’ brief opens with the statement, “This case got way off track.” We agree.
We, as was the trial court, are faced with a case where the Farrells were offered more than the GMPP entitled them to and which they refused to accept because they wanted GM to tell them exactly what had caused the fire. They wanted the GMPP to pay the repair costs and not GM (GM and GMPP are one and the same; thus, the Farrells’ argument is similar to insisting an individual pay what is owed from his left pocket and not his right pocket.). They also would not accept the offer because a release had to be signed and they contend the release requirement Was unconscionable and overreaching. Had they signed the release, the vehicle would have been repaired and a replacement vehicle furnished.
I. Limitation of Warranties in the GMPP.
Unconscionability under the KCPA is a question of law for the trial court. See K.S.A. 50-627(b); Waggener v. Seever Systems, Inc., 233 Kan. 517, 521-22, 664 P.2d 813 (1983). This court’s review of conclusions of law is unlimited. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990).
The trial court made the following ruling concerning the GMPP:
“Defendants engaged in unconscionable acts and practices in violation of K.S.A. 50-627. The Court ruled that the General Motors Protection Plan Service Agreement contained a clause that limited damages for breach of the implied warranty of merchantability and fitness for a particular purpose and remedies provided by law for breach of those warranties. This limitation of damages clause violates K.S.A. 50-627 and Defendant General Motors Corporation is found to have engaged in unconscionable acts and practices for this violation.”
The GMPP contract contains the following exclusion: “We will not pay anything under this Agreement . . . [f]or loss of time, inconvenience, lodging, food or other incidental or consequential loss or damage that may result from a FAILURE.”
The GMPP is a written contract. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. State v. Smith, 244 Kan. 283, 284, 767 P.2d 1302 (1989).
K.S.A. 84-2-314 provides, in part:
“(1) Unless excluded or modified (section 84-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.”
K.S.A. 84-2-315 provides:
“Where the seller at any time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on. the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”
K.S.A. 84-2-715 provides that.incidental and consequential damages are recoverable.
The Uniform Commercial Code contemplates that implied warranties may be limited. K.S.A. 84-2-316(2) provides:
“Subject to subsection (3), to exclude or modify the implied warranty of merchantability . . . the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’ ”
K.S.A. 50-639 provides:
“(a) Notwithstanding any other provisions of law, with respect to property which is the subject of or is intended to become the subject of a consumer transaction in this state, no supplier shall:
“(1) Exclude, modify or otherwise attempt to limit the implied warranties of merchantability and fitness for a particular purpose; or
“(2) exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of implied warranty of merchantability and fitness for a particular purpose.”
Then, K.S.A. 50-627(b)(7) provides that such a limitation is an “unconscionable act or practice.”
The drafters of this act, however, made clear that the supplier may make other express promises and those additional promises may be limited. K.S.A. 50-639(f) provides: “The making of a limited express warranty is not in itself a violation of this section.” Both parties argue extensively over whether the GMPP is an express warranty or not, and whether it is subject to K.S.A. 50-639(1). K.S.A. 50-639 only prohibits limitation of implied warranties. Subsection (f) merely restates the obvious — that other promises, in addition to ones implied by law, may be limited.
In connection with their argument, the Farrells cite Corral v. Rollins Protective Services Co., 240 Kan. 678, 732 P.2d 1260 (1987). In Corral, the plaintiff had contracted to have an alarm installed in his home. The contract provided that the alarm was to remain Rollins’ property, that Corral was to pay a periodic fee, that Rollins would maintain the alarm, and that Rollins would not be liable for any consequential damages resulting from the failure of the alarm in excess of a specified amount.
This court first held that common-law implied warranties arise from transactions other than sales, i.e., from sources other than UCC article 2. This court then held that under the then-existing statutory language in the KCPA, these common-law implied warranties could not be excluded. 240 Kan. at 688-90. Since then, K.S.A. 50-639(a)(l) has been amended to make it expressly clear that the only prohibition on limitation of warranties is of UCC warranties. K.S.A. 1990 Supp. 50-639(a)(l). The Farrells, however, argue that this amendment took effect after this cause of action arose and does not apply.
We do not find Corral to be relevant. Here, the issue is whether the GMPP excluded the UCC-implied warranties. We are not faced with common-law warranties. It does not matter whether the GMPP is an express warranty or a separate contract. The rule is the same — the GMPP may not limit the implied warranties.
Does the GMPP limit the implied warranties? In Stair v. Gaylord, 232 Kan. 765, 659 P.2d 178 (1983), the express warranty in question clearly provided that it was in lieu of all other warranties expressed or implied. This court said:
“The appellees rely on K.S.A. 1982 Supp. 50-639(9 which states: ‘The making of a limited express warranty is not in itself a violation of this section.’ This section, however, is not applicable to the present controversy. It merely recognizes that since an express warranty is not required to be made at all, a limited express warranty is proper. It does not allow a supplier to use a limited express warranty to exclude implied warranties.” 232 Kan. at 776.
Gaylord, then, presented a situation where a supplier clearly and expressly attempted to limit implied warranties. Here, the GMPP clearly provides that “[w]e will not pay anything under this Agreement . . . [f]or loss of time, inconvenience, lodging, food or other incidental or consequential loss or damage that may result from a FAILURE.” The GMPP simply does not intend to limit the car owners’ rights under implied warranties. The GMPP must provide something in addition to implied warranties or it would be valueless, as the implied warranties already exist. It is permissible for GM to limit the consequential damages recoverable in an agreement that provides extra benefits in addition to the implied warranties.
Both parties seem to be arguing that GM’s conduct is relevant. GM did (at least initially) breach its implied warranties in addition to breaching the GMPP. If the GMPP contract was ambiguous, then the parties’ conduct would be relevant in interpreting the contract. First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, Syl. ¶ 7, 602 P.2d 1299 (1979). However, because the contract is unambiguous, conduct is not relevant. Just because GM breached various warranties and contracts does not mean the GMPP disclaimed the damages recoverable under the implied warranties. There is a difference between breaching a warranty and disclaiming it. The trial court erred and its judgment for civil penalties on this issue is reversed.
II. The Release.
The release, forwarded to Hattan by GM and presented to the Farrells by Hattan, provided:
“I, Joseph Farrell of Valley Center, Kansas, in consideration of the repairs paid by General Motors Corporation . . . hereby release and discharge General Motors . . . from any and all claims and causes of action for any injuries, losses and damages to my person and/or property which may have been caused by, or which may at any time arise out of, or in connection with, the incident involving my 1986 Chevrolet Astro Van and its power door locks.”
“The mileage was 32,000 on November 13, 1988.”
The trial court said of this release:
“[A]ttempting to effect a general release of all claims including Consumer Protection Act remedies and remedies under the General Motors Protection Act in exchange for what General Motors already legally owed, is an unconscionable act or practice pursuant to the Consumer Protection Act.”
The KCPA addresses this, at least indirectly. K.S.A. 50-625 provides:
“(a) Except as otherwise provided in this act, a consumer may not waive or agree to forego rights or benefits under this act.
“(b) A claim, whether or not disputed, by or against a consumer may be settled for less value than the amount claimed.
“(c) A settlement in which the consumer waives or agrees to forego rights or benefits under this act is invalid if the court finds the settlement to have been unconscionable at the time it was made. The competence of the consumer, any deception or coercion practiced upon the consumer, the nature and extent of the legal advice received by the consumer, and the value of the consideration are relevant to the issue of unconscionability.”
The fact that an undisputed claim may be settled for less than its value means that a consumer must be able to agree to a release of liability. Therefore, the fact that the release waives rights is not, in and of itself, unconscionable. The real question is whether the settlement was unconscionable or not. Here, there was no settlement (because the Farrells refused to agree). GM made an offer to settle that was in excess of what the Farrells were owed on the GMPP and covered what they were owed on the implied warranties. The law does not require a party to make an exact determination of what caused a loss in order to make an offer. GM did not commit an unconscionable act in making a settlement offer under the facts of this case.
In any event, the request for the release is not an unconscionable act under the facts of this case.
As to Hattan, K.S.A. 50-627(a) provides that “[n]o supplier” shall commit unconscionable acts. K.S.A. 50-624(i) defines supplier as “a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer.” (Emphasis supplied.) Hattan does meet the definition of a supplier. K.S.A. 50-624(c) then defines a consumer transaction as “a sale, lease, assignment or other disposition for value of property or services within this state ... to a consumer or a solicitation by a supplier with respect to any of these dispositions.”
However, the warranties that Hattan is accused of disclaiming do not arise from the service it is providing. Rather, the warranties arise from the original sale of the van. Hattan did not sell the van. Hattan did not sell the GMPP. Hattan is not a party to the GMPP. In this case, Hattan is acting as nothing more than an accommodating party. The body shop industry operates on the basis that releases and proofs of loss are left with the body shops by insurance carriers in nearly every vehicle repair case and signatures are obtained by the body shop before the vehicle is released to its owner. The insurance company then pays the body shop. To hold the body shop (Hattan) liable for the contents of a release would be very costly to the public and a great inconvenience to the public because it would stop the present practice and require the consumer to inspect the vehicle, find the insurance company representative and sign the release, and contact the insurance carrier to arrange to have the vehicle released — all before the consumer could obtain the repaired vehicle.
Under the facts of this case, Hattan did not commit an unreasonable act or practice in violation of the KCPA. The trial court’s judgment on this issue is reversed.
III. Deceptive Acts and Practices.
GM and Hattan contend that the trial court erred in holding they concealed knowledge concerning the electrical failure and misrepresented to plaintiffs the cause of the fire.
Whether an act is a deceptive practice under K.S.A. 50-626 is a question of fact for the jury. Waggener, 233 Kan. at 522. Our standard of review, therefore, is whether there is substantial competent evidence to support the jury’s findings. Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
The jury was instructed on deceptive practices as follows:
“The Plaintiffs, Joseph and Carla Farrell, claim that Defendants General Motors Corporation and Don Hattan Chevrolet, Inc. engaged in deceptive acts and practicers by intentionally concealing knowledge of the electrical failure and misrepresenting to Plaintiffs the cause of the failure was undetermined.
“Deceptive acts and practices include the intentional failure to state a material fact, or the intentional concealment, suppression or omission of a material fact whether or not any person has in fact been mislead [sic].”
K.S.A. 50-626(b)(3) provides that a deceptive act may include (but is not limited to) “the intentional failure to state a material fact, or the intentional concealment, suppression or omission of a material fact, whether or not any person has in fact been misled.” The appellants did not object to the instruction and do not contend on appeal it is erroneous.
Appellants argue that it was not a fact that the fire was caused by an electrical failure, but that it was just the opinion of various service personnel. Appellants, citing Timi v. Prescott State Bank, 220 Kan. 377, 553 P.2d 315 (1976), state, “A fact is a fact, capable of ascertainment. An opinion is not a fact.”
Timi does not stand for a blanket proposition that an opinion is not a fact. In Timi, an employee of the defendant bank, gave his honest opinion as to the financial solvency of a third party. This was held not to be fraud. Timi is simply not relevant to the present case.
Here, the material fact that the Farrells allege was not disclosed was that the Hattan mechanics were of the opinion that the fire was caused by electrical failure. That the fire was so caused could never be more than an opinion. There is no way to “prove” it any further. Tanner believed that the fire was electrical. So did Hattan. This was material information. “A matter is material if it is one to which a reasonable person would attach importance in determining his choice of action in the transaction involved.” Griffith v. Byers Construction Co., 212 Kan. 65, 73, 510 P.2d 198 (1973). Knowing where the fire started prior to GM’s offer would have put the Farrells in a better position.
There was no objection made that Hattan and Tanner are not qualified to give an opinion as to what caused the fire and that issue is not before us.
The penalties awarded for failure to disclose the cause of the fire are affirmed.
IV. Mechanic’s Lien.
At trial, Hattan moved for a directed verdict on the conversion claim, stating it had a mechanic’s lien on the van. The trial court said orally:
“As to the issue of conversion, plaintiffs’ conversion theory is unique. The Court believes the plaintiffs are entitled to present that claim to the jury, violation of the Consumer Protection Act. In attempting to force plaintiffs to execute a release and lose incidental damages otherwise recoverable under the Consumer Protection Act, cannot be defeated by reliance on K.S.A. 58-210 Statutory hen law, and I recognize that, in making that holding, the statutorily — statutory conflict between those two statutes, but I believe that’s how it should be reconciled.”
In the journal entry, the trial court was more succinct:
“The Court ruled as a matter of law that Defendant Don Hattan Chevrolet, Inc., could not rely upon K.S.A. 58-201 as a defense to the wrongful detention claim because the Court found that Defendant Don Hattan Chevrolet, Inc., participated in attempting to effect a general release of all plaintiffs’ damage claims and said participation was an unconscionable act and practice in violation of K.S.A. 50-627.”
Because we have already held that Hattan did not commit an unconscionable act concerning the release, it follows that Hattan held a valid mechanic’s lien on the van, and there can be no conversion.
In any event, the trial court’s ruling that a mechanic’s lien is waived if the holder commits a wrongful act is in error.
K.S.A. 1990 Supp. 58-201 provides, in part:
“Whenever any person, at or with the owner’s request or consent shall perform work, make repairs or improvements or replace, add or install equipment on . . . automobiles [or] trucks [or] vehicles of all kinds, ... a first and prior lien on such personal property is hereby created in favor of such person performing such work . . . and such lien shall amount to the full amount and reasonable value of the services performed and shall include the reasonable value of all material used in the performance of such services and the reasonable value of all equipment replaced, added or installed.”
Hattan argues it had a valid mechanic’s lien and that a valid mechanic’s lien is a complete defense to conversion. Hattan’s general statement of the law is correct. Conversion is the unauthorized assumption of right of ownership over personal property belonging to another. Moore v. State Bank of Burden, 240 Kan. 382, 386, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987). In essence, the question is: Who has the rights to possession? In State v. Etape, 237 Kan. 380, 383, 699 P.2d 532 (1985), this court said, “[0]ne who has a mechanic’s lien on property has a superior possessory interest as against the general owner.” Since the holder of a mechanic’s lien has a superior possessory interest, there can be no conversion against the owner.
There is only one limit that has been recognized on mechanics’ liens and that is that there must have been a request and contract with the owner for the repairs to have been done. See Olson v. Orr, 94 Kan. 38, 145 Pac. 900 (1915); United States Fidelity & Guaranty Co. v. Marshall, 4 Kan. App. 2d 9, 601 P.2d 1169 (1979).
The KCPA does not take away a valid lien and allow a conversion claim. The KCPA provides: “Nothing in this act shall in any way limit or affect the rights or remedies which are otherwise available ... to any person under this or any other law statutory or otherwise.” K.S.A. 1990 Supp. 50-646.
While this section would normally apply to a consumer seeking additional recovery (e.g., punitives for fraud), the language “any person” makes it applicable to Hattan. Secondly, the KCPA provides for civil damages for wrongful acts under it. To allow a conversion claim simply because the Act was violated would be to allow double recovery (and punishment) simply for a violation of the Act. This is not to say that if the act was wrongful in another sense, i.e., fraudulent, punitive damages could not be recovered for the fraud.
In its ruling on the motion for judgment notwithstanding the verdict or for a new trial, the trial court also held that Hattan abandoned its lien when it returned the vehicle to the Farrells. K.S.A. 1990 Supp. 58-201 goes on to provide that “such lien shall be valid as long as the lien claimant retains possession of the property, and the claimant of the lien may retain the same after parting with the possession of the property by filing within 90 days in the office of the register of deeds, under oath, a statement of the items.” Then, K.S.A. 58-215 goes on to provide that “[t]he voluntary delivery to the owner or claimant of any personal property by any person claiming a lien thereon, as provided in this act, shall be held to be an abandonment of such lien, and such lien may be waived by special contract.”
In Weatherhead v. Boettcher, 3 Kan. App. 2d 261, 593 P.2d 420 (1979), the plaintiff filed for replevin of a car held by a repairman. The repairman answered, arguing he held a valid mechanic’s lien. Then, the repairman delivered the car to the defendant in anticipation of trial. The Court of Appeals held that the delivery of the car waived the lien absent an agreement that there was no waiver. 3 Kan. App. 2d at 263-64. Here, there is no evidence of such an agreement.
Here, Hattan had a valid lien and did not deliver the vehicle until it had been paid in full by GM under an agreement by the parties that GM would get credit against any judgment the Farrells might receive for the repair bill. Under the facts of this case, delivery of the vehicle, after the repair bill has been paid, does not amount to a waiver of the lien during the time Hattan held the vehicle, and the trial court erred in holding that Hattan was not entitled to hold the vehicle until paid and, thus, converted the van.
V. Punitive Damages.
Breach of contract, standing alone, does not call for punitive damages even if the breach is intentional and unjustified, but such damages are allowable if there is some independent tort present. Equitable Life Leasing Corp. v. Abbick, 243 Kan. 513, 516, 757 P.2d 304 (1988). Having held there is no conversion, there is no tort for punitive damages to be based on.
VI. Mitigation of Damages.
Appellants appeal the actual damage award for conversion of $7,000. The appellants are only appealing the award for loss of use in connection with conversion (for the period of January 3, 1989, to July 28, 1989) and not the award for loss of use in connection with the breach of implied warranty (for the period of October 25, 1988, through January 3, 1989, when the repairs were completed). They argue that the trial court erred in ruling that the Farrells had no duty to mitigate their damages. Here, GM offered the Farrells everything they demanded. The Farrells could have accepted GM’s offer to pay for the damages and pay for a rental car or they could have had their insurance company pay for the repairs at any time (at no cost to the Farrells). Having held that there was no conversion, this issue is moot.
As a result of our holdings herein, the remaining arguments are moot. The Farrells’ application for attorney fees on appeal is denied.
Affirmed in part, reversed in part, and remanded to reconsider attorney fees in light of our holding that Hattan and GM committed only one violation each of the KCPA.
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The opinion of the court was delivered by
Herd, J.:
In this criminal action, the district magistrate determined at preliminary hearing that the inventory search of an automobile owned by Fred D. Teeter was an illegal search and seizure and ordered suppression of all evidence seized as a result. Absent the suppressed evidence, the State failed to establish probable cause, and the case was dismissed. The State appealed the magistrate’s decision to the district court, where the magistrate was affirmed. This appeal by the State followed.
The facts are not in dispute. In the early morning hours of August 28, 1990, a Hiawatha policeman, Larry Slaper, noticed a car in a bowling alley parking lot with a person’s foot sticking out of a window. When Officer Slaper stopped to investigate, he found the defendant, Fred Teeter, in the car and asked Teeter for his driver’s license and proof of vehicle registration. Teeter’s driver’s license had expired but the vehicle registration showed Teeter was the owner of the vehicle. The vehicle had a temporary Missouri license plate.
Because Teeter did not have a valid driver’s license and was from out of town, Officer Slaper instructed Teeter to drive his car to the Law Enforcement Center. Upon arrival at the center, Officer Slaper asked Teeter for proof of liability insurance, which Teeter did not have. On the authorization of Police Chief Turner, Officer Slaper then impounded Teeter’s car. Teeter was not given a citation or arrested at that time because Officer Slaper had not observed Teeter actually driving illegally except at Slaper’s direction. The stated basis for impounding the car was that Teeter had no driver’s license or liability insurance and did not know anyone in Hiawatha who could drive the car for him.
Police Chief Turner instructed Officer Slaper to put Teeter up in a motel for the night. Officer Slaper initially had Teeter lock his car and allowed Teeier to keep the keys; he returned to the motel later, however, and got the keys from Teeter, who voluntarily relinquished them. Slaper did not warn Teeter that the keys would be used to facilitate a search of his car.
Three hours after Teeter’s car was impounded, Officer Slaper conducted an inventory search of it. Performing an inventory search of any impounded vehicle is standard procedure in Hiawatha. The search revealed a vial containing a white powdery substance, other containers containing a white substance, scales, spoons, and a syringe. The white substances were sent to the Kansas Bureau of Investigation for analysis which revealed them to be the controlled substances of methamphetamine and cocaine.
Later that morning Teeter was arrested at the motel. Teeter was charged with possession of methamphetamine and other controlled substances, K.S.A. 1990 Supp. 65-4127b; possession of a narcotic, cocaine, K.S.A. 1990 Supp. 65-4127a; possession of marijuana, K.S.A. 1990 Supp. 65-4127b(a)(3); and possession of drug paraphernalia, K.S.A. 65-4152(a)(2). As we previously stated, at the preliminary hearing the district magistrate held the inventory search of Teeter’s car was a violation of Teeter’s Fourth Amendment rights based upon State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975), overruled on other grounds State v. Fortune, 236 Kan. 248, 689 P.2d 1196 (1984). Because the search and seizure of Teeter’s car was illegal, the magistrate further found that all evidence acquired through the search should be suppressed. Due to the suppression of evidence, the magistrate held the State had failed to establish probable cause for the crimes charged and dismissed all four counts against Teeter; the dismissal was affirmed by the district court. This appeal followed.
The State contends the magistrate and the district judge erred in finding the search was illegal, suppressing all physical evidence, finding no probable cause, and dismissing the complaint. First, we must determine whether Teeter’s car was lawfully impounded, since that controls the other issues.
Under the Fourth Amendment to the U.S. Constitution, a search and seizure of evidence obtained without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Inventory searches of vehicles lawfully impounded have been recognized as one of these few exceptions. South Dakota v. Opperman, 428 U.S. 364, 369-71, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). Inventory searches of vehicles serve three purposes: the protection of the owner’s property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger. Opperman, 428 U.S. at 369.
It is a well-known rule of law that an inventory search of a vehicle cannot be valid unless the police first obtain lawful possession of the vehicle. The police must have authorization by statute or ordinance to lawfully impound a vehicle, whether at the station house or other place of safekeeping. If the police do not have express authority to impound a vehicle, they may still take lawful custody of a vehicle when there are “reasonable grounds” for impoundment. State v. Boster, 217 Kan. at 624.
The State argues that although no statute or ordinance gave Officer Slaper express authority to impound Teeter’s car, the police could lawfully impound the car under the circumstances. The State explains that impoundment was necessary to “protect the interests of both [Teeter] and the city and the citizens of Hiawatha.” Officer Slaper did not issue a citation to Teeter or arrest him. However, Officer Slaper, at the direction of Police Chief Turner, did impound the car because Teeter did not have a valid driver’s license or liability insurance and Teeter was not from the Hiawatha area. According to Officer Slaper, Teeter’s car was illegally parked in the bowling alley parking lot because it was not parked in a regular parking stall. Teeter was never asked if he could arrange to have somebody come to Hiawatha and move the vehicle for him.
It is Hiawatha police policy to instruct people found sleeping in their cars to go to a parking area by the lake, pull over out of the way, and sleep there. Officer Slaper testified the normal police procedure in Hiawatha is to issue a traffic citation in cases when the person’s driver’s license had expired or where the driver has no proof of liability insurance. Officer Slaper further admitted the car could have legally been driven by someone who did have a valid driver’s license, or it could have been towed.
State v. Fortune, 236 Kan. 248, gives us some guidance. A Wichita police officer arrested defendant for driving under the influence of intoxicating liquor. Because no one was present to assume responsibility for the vehicle, the defendant’s car was impounded pursuant to police policy. Furthermore, an inventory search of the vehicle was performed and all personal property was removed for safekeeping. 236 Kan. at 249. While addressing the issue of whether the scope of the search was reasonable and within the restraints of the Fourth and Fourteenth Amendments to the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution, we announced some guidelines for determining the reasonableness of impounding a vehicle. We stated:
“If the owner, operator or person in charge of the vehicle is readily available to make a determination as to the disposition of the vehicle then he may do so. If the person responsible for the vehicle desires that the vehicle be left lawfully parked upon the streets or that it be turned over to some other person’s custody, then, absent some other lawful reason for impounding the vehicle, his or her wishes must be followed. Only when a vehicle is found illegally parked and unattended, or where the person responsible for its possession is unable ... or unwilling to instruct the arresting officers as to the vehicle’s deposition or some other legal reason justifying impoundment exists should the officers assume control over the vehicle.” 236 Kan. at 257.
We had previously stated in State v. Boster, 217 Kan. at 624, six examples of situations which give rise to reasonable grounds for impoundment. They were:
“ ‘the necessity for removing (1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in the case of forfeiture. . .
Let us apply these guidelines to the facts currently under consideration. Teeter was in his car at the time Officer Slaper first noticed the car parked in the bowling alley parking lot, a private area. Although Teeter was capable of making decisions about whether to leave his car parked or to arrange for someone else to move or tow it, he was not consulted. We conclude the facts of this case do not support a reasonable basis for the police to lawfully impound Teeter’s car.
“An inventory search of an automobile cannot be valid unless the police initially obtain lawful custody of the vehicle.” Boster, 217 Kan. 618, Syl. ¶ 5. Since we have held the impoundment of Teeter’s car was unreasonable and, therefore, unlawful, the inventory search was unlawful. All evidence obtained through the unlawful search was properly suppressed by the magistrate. See Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963) (“fruit of the poisonous tree,” whether direct or indirect, is inadmissible evidence).
At a preliminary hearing the State, using evidence admissible at trial, must introduce sufficient evidence to make it appear to the judge that a crime has been committed with probable cause to believe the defendant committed the offense. State v. Jones, 233 Kan. 170, 172, 660 P.2d 965 (1983). Probable cause means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a reasonable belief that the person accused committed the offense with which he is charged. State v. Huff, 235 Kan. 637, Syl. ¶ 3, 681 P.2d 656 (1984). Without the evidence derived from the search, the State lacked the probable cause required to charge Teeter with the amended complaint’s four counts. The magistrate, therefore, properly dismissed the charges against Teeter.
The judgment of the trial court is affirmed.
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Per Curiam:
This original proceeding in discipline was filed by the office of the disciplinary administrator against Robert R. Cain, of Kansas City, Kansas, an attorney admitted to the practice of law in the State of Kansas. The formal complaint filed against respondent alleges violations of MRPC 1.3 (1990 Kan. Ct. R. Annot. 219), 1.4 (1990 Kan. Ct. R. Annot. 220), and 8.4(g) (1990 Kan. Ct. R. Annot. 290), and Canons 1 (1990 Kan. Ct. R. Annot. 165), 6 (1990 Kan. Ct. R. Annot. 188), 7 (1990 Kan. Ct. R. Annot. 193), and 9 (1990 Kan. Ct. R. Annot. 204). Respondent did not file an answer.
A hearing before the panel of the Kansas Hoard for Discipline of Attorneys was held on March 1, 1991, in the Harold R. Fatzer hearing room at the Kansas Judicial Center, Topeka, Kansas. Respondent did not appear in person or by counsel. The panel made the following findings of fact:
“1. “Respondent is an attorney at law. He is presently suspended from the practice of law. See In re Cain, 247 Kan. 673 [, 801 P.2d 1325 (1990)].
“2. Complainant Peggy L. Warhurst is a resident of Kansas City, Kansas. She is presently employed at Mercy Credit Service, Merriam, Kansas.
“3. Mrs. Warhurst testified she was injured on the job at Winchell’s Donuts on August 25, 1985. She retained Donald L. Zemites, attorney at law, to file a workers’ compensation claim on her behalf. She entered into a written contract of employment with Mr. Zemites. In December of 1985, Mr. Zemites referred Mrs. Warhurst to the Respondent. Mr. Zemites and the Respondent practiced law in the same building. Mr. Zemites told Mrs. Warhurst he was too busy to handle her claim and Respondent would do it for her.
“4. Mrs. Warhurst met with Mr. Cain in person upon being referred by Mr. Zemites. She did not sign a written contract with Respondent. Re spondent told Mrs. Warhurst he would handle the claim. All of Mrs. Warhurst’s records in her possession were provided to Mr. Zemites and then to Respondent.
“5. Mrs. Warhurst heard very little from the Respondent. She became concerned about her litigation and made numerous attempts to contact Respondent by telephone during 1986. She spoke with him several times on the telephone and he advised her he had filed a claim on her behalf and he told her the claim was proceeding well and there were no problems. “6. Respondent set up an appointment for Mrs. Warhurst to be examined by Nathan Shechter, M.D. on May 19, 1987, in order to get a disability rating. Mrs. Warhurst paid $350.00 by check directly to Respondent for the doctor’s fee. Mrs. Warhurst was examined by Dr. Shechter. At or around the time of the examination, Dr. Shechter’s office told her an additional $115.00 was due and owing for the examination. She paid the additional $115.00 directly to the doctor.
“7. Shortly after her examination, Mrs. Warhurst received a bill from Dr. Shechter’s office for $350.00. She advised the doctor’s office that the amount had previously been paid to Respondent. They, in turn, stated Respondent’s check to them for $350.00 in payment for the examination had bounced. “8. Mrs. Warhurst then made numerous attempts to contact Respondent about the bill. Eventually she was able to reach him and he made the check good.
“9. The report from Dr. Shechter lists a 5% to 10% disability to the body as a whole as well as the suggestion that additional medical treatment may be required periodically. The medical report was mailed to Respondent in May. He never provided Mrs. Warhurst with a copy of the report despite her requests to see it.
“10. Mrs. Warhurst continued to leave telephone messages for the Respondent to contact her during 1987-1988 at both his home and office. She grew increasingly concerned when she heard nothing. In September of 1988 she received a letter from the insurance carrier for Winchell’s Donuts advising her to contact the carrier about her claim. She spoke with Wanda Hedeberg, Workers’ Compensation supervisor, on September 6, 1988, who told her she was in danger of losing her compensation claim. Still unable to reach Respondent Mrs. Warhurst went to his offices. She discovered that Respondent had moved and sought Mr. Zemites’ assistance in locating him. Mr. Zemites was able to obtain a telephone number for Respondent and had him call Mrs. Warhurst within a few days.
“11. Respondent assured Mrs. Warhurst that she was not to worry and she would not lose her claim. Thereafter, Mrs. Warhurst heard nothing further from Respondent. Her numerous telephone calls and correspondence went unanswered.
“12. On July 12, 1990, Mrs. Warhurst again contacted Mr. Zemites for assistance because he had referred her to Respondent and transferred her file to him. Mr. Zemites advised her during the telephone conversation that Respondent was having personal problems. Mr. Zemites also told Mrs. Warhurst that Respondent had previously told him that Mrs. Warhurst did not get rated for disability. Finally Mr. Zemites instructed Mrs. Warhurst to ask for her file from Respondent and sue Respondent.
“13. Mrs. Warhurst also called the Kansas Workers’ Compensation Director’s office on July 12, 1990. She was told they had no record concerning her claim. She sent Respondent a registered letter requesting the return of her file. He signed for the letter but has never returned her file.
“14. John M. Duma was appointed to investigate the charges against Respondent.
“15. Mr. Duma sent Respondent two letters requesting the Respondent to contact him about the charges. Respondent did not answer the letters. Upon contacting the Kansas Workers’ Compensation Director’s office in August of 1990, Mr. Duma confirmed that there had never been a claim filed on behalf of Mrs. Warhurst by Mr. Cain. He was told it was beyond the statute of limitations for her to proceed in her workers’ compensation case.
“16. Mrs. Warhurst complains of pain and suffers with back spasms as a result of the injury. She has seen a neurologist, but cannot afford the medical treatment she requires.”
The panel concluded that there was clear and convincing evidence that respondent’s actions with respect to the handling of the claim on behalf of Peggy L. Warhurst constituted a violation of MRPC 1.3, 1.4, and 8.4(g), and Canons 1, 6, and 7.
The panel recommended that respondent be disciplined by disbarment from the practice of law pursuant to Supreme Court Rule 203(a)(1) (1990 Kan. Ct. R. Annot! 137). Respondent was directed to appear before this court pursuant to Supreme Court Rule 212(d) (1990 Kan. Ct. R. Annot. 149) but failed to do so.
After carefully reviewing the record in this action, we agree with and adopt the panel’s findings, conclusions, and recommendations.
It Is Therefore Ordered that Robert R. Cain be and he is hereby disbarred from the practice of law in this state, and the clerk of the appellate courts is directed to strike his name from the roll of attorneys authorized to practice law in Kansas.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155).
It Further Ordered that the costs of the proceeding be assessed to the respondent, and that this order be published in the official Kansas Reports.
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The opinion of the court was delivered by
Allegrucci, J.:
The State appeals from the district court’s order suppressing the evidence and dismissing a complaint charging the defendant with one count each of felony possession of marijuana (K.S.A. 1990 Supp. 65-4127b) and possession of drug paraphernalia (K.S.A. 65-4152).
On April 13, 1990, Officer Rick Rhodenbaugh, of the Reno County Sheriff’s Department, was patrolling rural Reno County in his marked patrol car. At 9:11 p.m., he received a dispatch to check a vehicle in the area of Valley Pride Road and Morgan Avenue. An individual had reported an older model green pickup parked in the area but did not want to be contacted again by the police about the vehicle. The only information received about the vehicle was that it was an older model green pickup, that it was in the immediate area of where the reporting party lived, and that this party was unfamiliar with the vehicle and could not determine by driving by what the vehicle was doing at this location.
Valley Pride Road runs north and south, while Morgan Avenue runs east and west. This is an intersection of two sand or gravel township roads in an agricultural area. No one lives at the intersection, and there are no structures there. At 9:11 p.m., it was dark with no street lights in the vicinity.
Seven minutes after being dispatched, Officer Rhodenbaugh approached the intersection from the east on Morgan Avenue. As the officer approached the intersection, he observed the taillights or brake lights of a vehicle in front of him just west of the intersection. This vehicle was either stopped or moving very slowly and appeared to be stationary, sitting alongside another vehicle whose headlights came on facing the officer.
This vehicle had been sitting with its lights off on the south side of the gravel road facing east. The vehicle was as far off the road as the shoulder would allow. Officer Rhodenbaugh testified: “I believe it was partially on the roadway. It is possible it had pulled off onto the edge of the grass, but there wouldn’t have been probably enough room for it to park in the ditch.” The first vehicle left in a westbound direction on Morgan Avenue before the officer arrived at the scene. The second vehicle drove east on Morgan Avenue toward the intersection and then turned south on Valley Pride Road. At that time the officer could see that this second vehicle was an older model green GMC pickup. He stopped the vehicle “as being the vehicle that I was supposed to check on in the area.” The officer testified that “the car was not doing anything wrong” when he stopped it.
Officer Rhodenbaugh approached the driver’s side of this vehicle, finding the window rolled halfway down. The officer detected the odor of burning marijuana as he spoke with the driver, who was the sole occupant and who identified himself as the defendant. When he asked defendant to get out of the vehicle, he saw an open Budweiser beer container and placed defendant under arrest for illegal transportation of liquor. While patting down defendant, the officer found a baggie containing green vegetation, which was later determined to be marijuana, in defendant’s pocket. In searching defendánt’s truck, the officer found a brass “one-hitter pipe” and zig-zag rolling papers. He also found the burnt ends of marijuana cigarettes, or “roaches,” in the ash tray. Neither the drug paraphernalia nor the roaches were observed prior to the search of the vehicle.
On October 19, 1990, at a hearing on defendant’s motion to suppress the evidence, the court, relying on State v. Kirby, 12 Kan. App. 2d 346, 744 P.2d 146 (1987), aff'd 242 Kan. 803, 751 P.2d 1041 (1988), granted defendant’s motion to suppress. In doing so the district judge noted that the only issue of concern was whether the officer had a reasonably articulable suspicion of criminal activity when he stopped the vehicle. The court stated:
“It is my understanding from the evidence, the testimony of the officer, and I think it is clear from his testimony that the only reason he stopped this vehicle is, is because it matched the description given to him by dispatch. There is no other reason that he stopped it. There was no reason to believe there was any criminal activity. I don’t think it is unlawful for a car to be parked on the side of the road with its lights off. I don’t believe it’s unlawful for two cars to be parked side by side visiting or whatever was going on. The officer saw nothing that would suggest any type of criminal activity. He testified that when the defendant’s vehicle turned the corner, he saw it to be one that matched the description of the dispatch, and that is why he stopped it. Whether it was described to the officer as check vehicle or suspicious vehicle, I don’t think that implies criminal activity. I think that says to the officer, get out there and see what is going on. Now, I don’t know that the stop is illegal. I think the officer can stop and find out what the defendant was doing, but once he does, I think he has to recognize that any evidence received from this stop, you know, is unconstitutionally seized. ... I think this case falls within Kirby. The officer can stop that vehicle if he has a reasonable suspicion that there is criminal activity. There is no criminal activity that was known to the officer or any reason to believe there was any criminal activity, The only reason for the stop was because it matched the description from dispatch, the vehicle did, and that is not enough. That is not, that does not amount to reasonable suspicion of criminal activity. I am going to sustain the motion.”
The State concedes that the prosecution hinged upon the availability of the evidence that had been suppressed and that without that evidence the case should be dismissed. The State reserved its right to appeal the decision. The journal entry documenting the suppression of the evidence also entered a dismissal of the case. The State appealed from this decision.
The sole issue raised by the State in this appeal is whether Officer Rhodenbaugh, based upon the evidence presented at the suppression hearing, had a reasonable and articulable suspicion to stop the defendant. The State contends that Officer Rhodenbaugh was justified in stopping the defendant pursuant to K.S.A. 22-2402(1). K.S.A. 22-2402 is a codification of the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In Terry, the Court held an officer may stop and frisk an individual even though the officer does not have probable cause to believe a crime has been or is being committed if the officer is able to point “to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 392 U.S. at 21.
K.S.A. 22-2402 provides as follows:
“Stopping of suspect. (1) Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may search such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”
An officer who does not have reasonable suspicion to justify a Terry stop may, however, approach an individual on the street for investigative purposes. State v. Epperson, 237 Kan. 707, 713, 703 P.2d 761 (1985); State v. Marks, 226 Kan. 704, 708-09, 602 P.2d 1344 (1979). The officer can ask the individual’s name and request identification but cannot force the individual to answer. The individual is free to leave.
In Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983), the United States Supreme Court reasserted that the Fourth Amendment was not violated by a law enforcement officer’s merely approaching an individual on the street or other public place, asking him questions if he is willing to answer, or putting questions to him if he is willing to listen. See Dunaway v. New York, 442 U.S. 200, 210 n.12, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Terry v. Ohio, 392 U.S. at 34 (White, J., concurring). The Court in Royer noted:
“The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Terry v. Ohio, 392 U.S. at 32-33 (Harlan, J., concurring); id., at 34 (White, J., concurring). He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, [446 U.S. 544, 556 (1980)] (opinion of Stewart, J.). If there is no detention — no. seizure within the meaning of the Fourth Amendment— then no constitutional rights have been infringed.” 460 U.S. at 497-98.
The stop of a vehicle being driven upon the streets, however, is different than merely approaching an individual in a public place. Such a stop always constitutes a seizure. Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402 and Terry. Delaware v. Prouse, 440 U.S. 648, 661-63, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of “specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that the vehicle contains individuals involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975).
The State asserts that the stop of the vehicle here can be justified by two separate arguments. First, it asserts that the officer observed a crime being committed because defendant’s vehicle was stopped on the road in a 55-m.p.h. speed zone with its lights off in the dark. The .officer testified that it was dark when he arrived at 9:11 p.m. Therefore, lights were required if the vehicle was being operated on the highway or shoulder. Under this same argument, the State asserts that arguably a person who stops a vehicle in a 55-m.p.h. speed zone on the roadway without headlights at night is guilty of reckless driving, which includes driving a vehicle “in willful or wanton disregard for the safety of persons or property.” K.S.A. 1990 Supp. 8-1566.
The problem with this argument is that Officer Rhodenbaugh did not stop the vehicle based upon his observation that defendant was committing a crime. The officer unequivocally testified at the suppression hearing that he stopped the vehicle because he thought it was the one described by the dispatcher. He specifically stated that the vehicle was not doing anything wrong when it was stopped. He thought that the vehicle had been parked partially on the roadway because he did not think enough room existed to park it in the ditch completely off the roadway. Clearly the officer’s testimony that the vehicle was parked on the roadway was based upon speculation, not articulable facts. No evidence of measurements of the truck or the shoulder area was introduced.
Second, the State argues the stop was justified because the officer had a reasonable and articulable suspicion to justify the stop as required by K.S.A. 22-2402. Kirby, 12 Kan. App. 2d at 352. In support of this argument, the State notes that reasonableness under 22-2402(1) is based upon the totality of the circumstances and will be viewed in terms understood by those in law enforcement. The officer making the stop must be able to articulate the basis for his reasonable suspicion. State v. Keene, 8 Kan. App. 2d 88, 90, 650 P.2d 716, rev. denied 232 Kan. 876 (1982), cert. denied 459 U.S. 1217 (1983). This contention is correct. See State v. Henry, 14 Kan. App. 2d 416, 418, 792 P.2d 358, rev. denied 247 Kan. 706 (1990).
The State argues that the officer found the vehicle that he was dispatched to check in the area described. This area was not near a structure or residence and was dark. According to the State’s argument, the officer observed the vehicle parked on the roadway in a 55-m.p.h. speed zone without illuminating its headlights, which constitutes a reasonable and articulable suspicion. As support, the State quotes from a United States Supreme Court decision interpreting the parameters of a Terry stop, as follows: “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972). This court included this quote in State v. Kearns, 211 Kan. 158, 160, 505 P.2d 676, cert. denied 414 U.S. 841 (1973), which approved an officer’s stop of a white over blue Cadillac getaway car used following the theft of some shoes from a local shoe store. 211 Kan. at 159. To justify a stop, however, involvement in some kind of criminal activity must be suspected. None was reported here.
The State discusses several Kansas appellate court decisions to support the stop. In Kirby, the Court of Appeals recognized that the location, time of day, previous reports of crime in the area, and actions of a suspect may justify an investigatory stop. 12 Kan. App. 2d at 353. Although none of the individual facts cited in Kirby constituted reasonable suspicion, all of the facts taken together supported the trial court’s finding that the deputy had a reasonable and articulable suspicion to.justify the stop. 12 Kan. App. 2d at 354. The deputy who initiated the stop was aware of reports of deer poaching in the area, came upon a pickup truck parked on a rural road with its lights out, and noticed that something was in the truck bed covered by a tarp. The court found this sufficient to stop the defendant and inquire about the individual’s reason for being in that area. 12 Kan. App. 2d at 354.
Here, by the time the officer arrived, the vehicle was not stopped but instead was proceeding down the road in a lawful manner. Neither the rural location nor the time (just after 9:00 p.m.) provides suspicion to an officer. The officer had no reports of previous crime in the area and saw no furtive actions by the driver that would justify the stop. The facts here are clearly distinguishable from those in Kirby.
In State v. Marks, 226 Kan. 704, the officer approached a stopped automobile that contained two young men who matched the general description of two men described in an earlier police dispatch and wanted in connection with criminal activity. The court found that no seizure occurred in the officer’s initial contact because under those facts the officer had the right to approach and question the individuals during the course of a criminal investigation. 226 Kan. at 709-10. In reaching this decision, the court relied upon previous Kansas Supreme Court cases that allow a police officer to approach to investigate possible criminal behavior even though no probable cause exists to make an arrest. 226 Kan. at 710 (citing State v. Holthaus, 222 Kan. 361, 363-64, 564 P.2d 542 [1977], and State v. Boone, 220 Kan. 758, 556 P.2d 864 [1976]). When the officer in Marks approached the vehicle he observed a gun, which the court found admissible under the plain view doctrine. 226 Kan. at 710. Once again, the facts here are distinguishable. The reasonable suspicion of the officer in Marks was based upon an earlier police dispatch giving the general description of two individuals who were connected with criminal activity. Here, the dispatcher never suggested that the vehicle in question was related to criminal activity.
The facts of State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986), are also distinguishable from those presented in this case. In Baker, a dispatch described two black men dressed in black jackets and blue jeans wanted in connection with an armed robbery occurring about 16 blocks away from where the officer was patrolling. While approaching the scene of the robbery, the officer shined his light into a passing car and saw that it contained three black men dressed in dark clothing. As the officer approached the car, which had turned and was parked on the street, the car’s lights came on as if to leave. Based upon the information the officer had received in the dispatch, combined with his background, training, and experience, the court concluded that he had reasonable grounds to suspect that the individuals in the car were connected with the commission of the robbery and, therefore, had grounds to stop and frisk them under K.S.A. 22-2402(1) and Terry. These facts are easily distinguishable from the case at hand where the officer had no description of any individuals but had merely been dispatched to check a vehicle parked in a rural area with no known criminal activity.
The State also relies upon State v. Keene, 8 Kan. App. 2d 88, to support this stop. In Keene, the officers stopped a car after it slowly departed from the scene of a probable illicit transaction, although they had not observed any criminal activity prior to the stop. The officers initiated the stop based upon a prior complaint one of the investigating officers received from a private citizen about possible illegal activities involving drugs or stolen property at the house next door. One of the officers observed a car with three men stop at the house. One of the men entered the house and returned with the defendant, who was carrying a small sleeping bag. The car proceeded down the street at a very slow speed. The officer stopped the car to conduct a “field investigation” or “routine traffic stop.” 8 Kan. App. 2d at 88-89. When the officer approached the car, he observed two open containers of beer in plain view, and a more extensive search was conducted that revealed marijuana. The court concluded that the tip from the reliable source of possible illicit activity and the slow departure of the car after picking up someone from the suspected house constituted a sufficient basis for reasonably suspecting the occupants were involved in criminal activity and justified the stop. 8 Kan. App. 2d at 90. In contrast, here the officer had no information which indicated any kind of criminal activity related to the car seen in the rural location. Nor did the driver. of the automobile act suspicious when the officer approached.
The trial court is to determine the reasonableness of a search based upon the facts and circumstances unique to that case. Kirby, 12 Kan. App. 2d at 353. In reviewing a trial , court’s decision, an appellate court must consider whether the findings of the trial court on the motion to suppress are based upon substantial evidence. Kirby, 12 Kan. App. 2d at 353. This court has described substantial evidence as
“ ‘evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1981); see Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988). An appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court and must disregard any conflicting evidence or other inferences that might be dravyn therefrom.” Lansing-Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, 572-73, 808 P.2d 1369 (1991) (citing Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 243-44, 736 P.2d 882 [1987]).
We conclude that there is substantial evidence to support the district court’s rejection of the State’s first argument. The area was dark when the officer approached. He saw taillights. Then he saw headlights of a second vehicle facing him that was adjacent to the first vehicle. The first vehicle left the scene, while the second vehicle approached the officer and then turned a comer. The officer testified that the vehicle was not doing anything wrong. This stop cannot be justified under K.S.A. 22-2402 on the grounds the officer observed a crime being committed.
The district court’s rejection of the State’s second argument is also supported by substantial evidence. Officer Rhodenbaugh was dispatched to check out a parked vehicle in a rural area. When the officer arrived, the area was unilluminated. There were no structures in that area, and the officer received no information indicating that the vehicle or its occupants were involved in any kind of criminal activity. When the officer first arrived in the area, the vehicle did not have its headlights on. Before the officer got to the scene, he observed the vehicle with headlights illu minated move away from the area and turn a comer. The officer did not stop the vehicle because of any wrongful conduct he observed but, instead, stopped it based upon the dispatch to check out a parked vehicle.
The officer had no reasonable and articulable suspicion, to stop this vehicle. He was dispatched to find out why the vehicle was parked in this rural area. When he arrived, the vehicle was no longer parked there. Because there was no suspicion of wrongful activity, the occupant of the car should have been free to leave without the intrusion of a stop and seizure by an officer. In reviewing the decision of a trial court, this court must accept as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court, and must disregard any conflicting evidence or other inferences that might be drawn therefrom. Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 244, 736 P.2d 882 (1987). In so doing, we find substantial competent evidence exists in the record to support the district court’s decision.
The judgment is affirmed.
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Per Curiam:
This is an original proceeding in discipline filed by the disciplinary administrator against David R. Gilman of Overland Park, Kansas, an attorney admitted to practice law in Kansas. The facts, as determined by a hearing panel of the Kansas Board for Discipline of Attorneys, are not disputed.
Gilman was employed to represent a client in a DUI case in the District Court of Franklin County, Kansas. At a pretrial conference, Gilman agreed to a trial date of March 9, 1990, at 9 a.m.
After the Franklin County trial was scheduled, Gilman received notice that another client’s DUI trial was scheduled for the same morning in Johnson County. Gilman did not seek a continuance of either case. Gilman spoke to his client, who was scheduled for trial in Franklin County, the night before the trial was to start and confirmed the time and date of the Franklin County trial.
When the Franklin County trial was ready to begin, Gilman did not appear. His client, the prosecutor, three witnesses, and an out-of-county district court judge were present and ready for trial.
The trial judge in Franklin County made a series of telephone calls trying to ascertain Gilman’s whereabouts. Gilman did call his office to request that the clerk’s office in Franklin County be notified he was delayed. Gilman, however, did not directly contact the trial judge in Franklin County the day the trial was scheduled (Friday). He did not attempt to contact the trial judge during the weekend.
The Franklin County trial judge attempted to contact Gilman again the following Monday. Gilman finally contacted the judge at three o’clock in the afternoon on Monday, March 12, 1990.
The DUI case in Franklin County subsequently was heard by a different judge, and the defendant was convicted. Gilman failed to appear for the sentencing hearing and. offered no explanation for his nonappearance. Gilman’s client was not prejudiced by Gilman’s failure to appear because the prosecutor advised the trial court of a trial error that resulted in a mistrial. Thereafter, Gilman appeared and the case was concluded.
The panel found Gilman violated Model Rules of Professional Conduct (MRPC) 1.3 (1991 Kan. Ct. R. Annot. 232) because he failed to act with reasonable diligence and promptness in representing a client; MRPC 1.4 (1991 Kan. Ct. R. Annot. 234) because he did not keep his client reasonably informed and he misinformed his client; and MRPC 8.4(d) and (g) (1991 Kan. Ct. R. Annot. 308) because his conduct was prejudicial to the administration of justice and reflected adversely on his fitness to practice law.
The panel recommended that Gilman be disciplined by public censure pursuant to Rule 203(a)(3) (1991 Kan. Ct. R. Annot. 143).
In mitigation, Gilman has computerized his law office and has submitted, in writing, procedures he has implemented voluntarily to eliminate further docket problems.
Gilman did not file exceptions to the panel report. He appeared personally before this court and, as he has at each level of the proceeding, apologized for his behavior.
Based on the record, we agree with and adopt the panel’s conclusions and recommendations.
It Is, Therefore, Ordered that David R. Gilman be, and he is, hereby publicly censured for his previously enumerated violations of the rules of professional conduct.
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent, David R. Gilman.
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The opinion of the court was delivered by
Aliucn, J.
: Several objections are urged against the consideration of the petition in error and transcript of the record filed in this court, but none of them are valid. The contention on behalf of the defendant in error is that the giving of a bond is a condition precedent to the taking effect of the appointment of a guardian ; that the appointee, although recognized by the probate court, has no right to assume any control over the estate of the minors until a proper bond has been executed and approved. By section 7 of chapter 46 of the General Statutes of 1889, it is provided that guardians appointed to take charge of the property of a minor must give bond with surety to be approved by the court. The only exception to the requirement of a bond seems to be in the case of. a testamentary guardian where the testator by will requests that no bond be required. By section 15 of the same chapter, it is provided that, before any sale or mortgage of the property of a minor can be made, security must be given to the satisfáction of the court in double the value of the property to be sold or of the money to be raised bj^ the mortgage. Whatever the individual views of the members of this court, as now constituted, may be as to the proper construction of section 15, prior decisions of the court have fully settled it. In the case of Watts v. Cook, 24 Kan. 278, it was held that “the failure of a guardian to give security, as required by section 15, chapter 46, Compiled Laws of 1879, upon an order for the sale of real estate, will not render void a sale regularly made and approved.” This decision, rendered in 1880, was followed in the case of Howbert v. Heyle, 47 Kan. 58, decided in 1891, and again in Higgins v. Reed, 48 Kan. 272. While these cases refer to section 15 only, in terms, they are really decisive of the question presented in this case. The language of section 15 indicates much more strongly that the legislature intended to make the execution of a bond a condition precedent to the right to convey or mortgage than that of section 7 does that the giving of a bond should be a condition precedent to the validity of an appointment. The appointment of a guardian precedes the requirement of a bond. There are cases in which no bond need be required. If a bond is given in compliance with’ the requirements of section 7, under the decision in the case of Morris v. Cooper, 35 Kan. 156, the sureties on such bond would not be liable for any misapplication of the funds raised by a mortgage of the minor’s estate; the limit of their liability ex tending only to the proper care and management of ' the personal estate and the rents and profits of the realty.
Insley was appointed guardian by the probate court, took the oath required by the statute, received letters of guardianship regular in form, and was recognized by the court as the acting guardian. It being the established law of this state that a purchaser or mortgagee need not inquire whether a bond has been given under section 15, it logically follows that he need not inquire as to the giving of a bond under section 7.
The judgment is reversed, with directions to enter judgment on the special findings of fact in favor of the plaintiff for the amount of his bond and interest, and foreclosing the mortgage sued on.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.
: This was an action brought by Enoch O’Brien to recover from George D. Wesner a tract of land situate in Miami county and the rents and profits of the samé for a period of three years. Prior to June 18, 1875, the land was owned by O’Brien, and on that day, in a divorce proceeding brought by his wife, Annie O’Brien, it was decreed to her as alimony. Afterward, Annie O’Brien transferred the land to another, and Wesner derived his title from that source, and about three years before the commencement of the action he took possession of the same and made substantial improvements thereon. More than 14 years after the divorce proceedings Enoch O’Brien began this proceeding, challenging the effect of the decree and the title of Wesner. On the trial, it appeared that the action for divorce was begun in Johnson county, and, as summons could not be served upon Enoch O’Brien within the state, service was obtained by publication, and in the notice it was expressly stated that she would ask judgment for the custody and control of an infant son, and that the tract of land in question should be decreed to her as alimony. The constructive notice was given in the manner prescribed by law, and the judgment awarding her the land as alimony was based solely upon constructive notice. On the trial of this cause, record evidence of the divorce proceeding and the decree appropriating the lands in question as alimony was excluded by the court, because it appeared that Enoch O’Brien had no other than constructive notice of the proceedings, and because the land was not in the county within which the court was'sitting. This ruling presents the controlling question of the case. It is conceded that constructive notice was sufficient to authorize a divorce of the parties, but it is contended that a decree terminating the marriage relation was the full extent of the jurisdiction and power of the court. The determination of the question depends to a great extent upon the statutes of the state, and that the state has full power through its legislature and courts to regulate and control the status of its citizens, and to dispose of or control real property to whomsoever it may belong within its limits, will hardly be denied. It is provided that service may be made by publication “in actions to obtain a di vorce, where the defendant resides out of the state,” and “in actions brought against anon-resident of the state . . . having in this state property . sought to be taken by any of the provisional remedies or to be appropriated in any way.” It is also authorized where the action relates to real or personal property in this state in which a non-resident defendant has or claims an interest, or where the relief demanded consists wholly or partly in excluding/him ■from any interest therein. (Civil Code, § 72.) /These provisions, if valid, afford authority to disso/ve the marriage relation upon constructive notice, and also to appropriate the real property of the non-resident defendant. In Dillon v. Heller, 39 Kan. 599, it is held that
‘ ‘ Kansas is supreme except so far as its powers and authority are limited by the constitution and laws of the United States. And within the constitution and laws of the United States the courts of Kansas may have all the jurisdiction over all persons and things within the state which the constitution and laws of Kansas may give to them, and the mode of obtaining this jurisdiction may be prescribed wholly, entirely and exclusively by the statutes of Kansas. To obtain jurisdiction of anything within the state of Kansas, the statutes of Kansas may make service by publication as good as any'other kind of service.”
The same view has been expressed by the supreme court of the United States, where it is said:
“The state through its tribunals may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them, and the exercise of this jurisdiction in no respect infringes upon the sovereigntj/ of the state where the owners are domiciled. Every state owes protection to its own citizens, and when non-residents deal with them it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens.” (Pennoyer v. Neff, 95 U. S. 714.)
In the exercise of this.power, lands of non-resident owners are appropriated for the taxes assessed against them upon a publication notice only, mortgage and mechanics’ liens are foreclosed against non-resident defendants where there is neither personal service nor appearance, and the property of non-resident defendants lying within the territorial jurisdiction of the court is subjected to the payment of claims and demands in a variety of ways without other service than by publication. (Dillon v. Heller, supra.) It was therefore competent for the legislature to provide for the granting of a divorce upon constructive service, and as alimony is an incident of divorce it may be awarded in the same proceeding, if it is within the power of the court. Did the district court of Johnson county exceed its jurisdiction in decreeing the land in question as alimony? It had jurisdiction of the plaintiff, who was a resident of Kansas and of the county in which the action was brought. The child, whose custody she asked, but who died before the decree was rendered, was within the territorial jurisdiction of the court. The land sought to be appropriated as alimony was within the state and the operation of its laws,'and subject to the control and disposition of its courts. The wife asked that this particular tract be subjected to the payment of her claim for support, definitely describing it in her petition, and setting out facts entitling her to alimony. That such relief was demanded was expressly stated in the publication notice, wherein the land was particularly described. In this way the land was brought before the court and subjected to its control. It is true, as the authorities cited by the defendant in error show, that upon such a notice a judgment for money or one which could be enforced against the person of the defendant cannot be rendered. A court has no authority to render a judgment in personam without obtaining jurisdiction of the person of the defendant. Here, however, the land was brought within the control of the court in what was substantially a proceeding in rem. The complaining wife was here ; the land sought lío be subjected as alimony was here; she had an inoíhoate interest in the land, which possessed the element of property to such a degree that she could maintain an action during the life of her husband for its protection and for relief from fraudulent alienation by her husband. (Busenbark v. Busenbark, 33 Kan. 572.) It was necessary for the support of the wife, who was seeking a divorce, and the law provides that alimony may be awarded in such cases. The land was subject to the laws of the state and was within the reach of the proceedings and process of its courts. In such a case we think the court has power not only to terminate the marriage relation, but to fix custody and control of the children of the marriage Who are before the court, and to appropriate as alimony any real property of the defendant within its territorial jurisdiction. It is true that there was no formal seizure of the property, but a seizure of land in such a case is little more than a form. The essential matter is that the defendant shall have legal notice of the proposed appropriation, and this is afforded by the publication notice which warns the defendant that one of the purposes of the proceeding is the sequestration of the land. It refers interested parties to the petition, in which the land is definitely described, and wherein it is asked that the land be set apart as alimón^. A formal seizure is no more essential to the jurisdiction of the court in a proceeding of this kind than in an action to quiet title to land based alone on constructive service, and in the latter case it was held that complete jurisdiction was acquired by the court -without, formal seizure and in the same manner as it was obtained in the divorce proceeding. (Dillon v. Heller, supra.) The theory that the limit of the power of the court in a divorce suit where there is no personal service is the dissolution of the marriage does not obtain in this state. In the early case of Lewis v. Lewis, 15 Kan. 181, it was held that upon such service a decree barring the defendant of any interest in the plaintiff’s property was valid and binding. See, also, Chapman v. Chapman, 48 Kan. 636. We cannot sustain the view of the court of appeals that the jurisdiction of the court in such a proceeding does not reach lands in a county other than where the court is sitting. (Wesner v. O’Brien, 1 Kan. App. 416.) The jurisdiction depends upon the domicile of the plaintiff, and not upon the location of the land sought to be appropriated as alimony. It must be brought in the county of which the plaintiff is a resident, and cannot be maintained unless the plaintiff has been an actual resident of the state in good faith for one year before the filing of the petition. (Civil Code, §640.) Alimony is an incident of the divorce proceeding, and, when the action is rightfully brought, any land within the operation of the laws of the state, and which has been brought within the control of the court, may be appropriated as alimony. The ancillary step in a divorce proceeding is not to be treated as an action brought to recover real estate or to determine an interest therein, and is not governed by the provisions of the code directing that such ac tions shall be brought in the county wherein the land or some part thereof is situated. The divorce action may be brought where the plaintiff resides, and only oné action is necessary, and when it is properly brought there is drawn to the court and within its jurisdiction any lands of the defendant sought to be appropriated as an incident of the divorce, wherever they may be situated within the state. If this were not the rule, hoTV could lands of the defendant situated in different /parts of the state be reached by a court granting the divorce upon either personal or constructive service ? Must an action be brought in each county in which any of the land lies ? And if so, must the plaintiff acquire a residence in each before the court can be invested with authority to award the land as alimony ? We think that only a single action is required or authorized, and that any land within the state brought within tlie control of the court .in the manner heretofore stated is subject to its jurisdiction and decree, without regard to county lines or boundaries.
For these reasons the court of appeals erred in affirming the judgment of the district court, which will be reversed, with directions to grant a new trial of the cause.
■ All the Justices concurring.
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The opinion of the court was delivered by
Allen ,*J.:
I. It is contended that the distrio ourt of Morris county had no jurisdiction over the/defendants in this action. Both were corporations. The principal place of business and all the officers of the commission company were in "Wyandotte county, and the railway company had merely its line of road and local agents in Morris county. The cattle sought to be recovered in the action appear to have been out of the county when the suit was commenced, or, at least, were moved out before the sheriff could take possession of them. It is contended that sections 49 and 50 of the code prescribe the rules determining the county in which an action agaiDst a corporation must be brought, and that it must be “in the county in which it is situated or has its principal office or place of business, or in which any of the principal officers thereof may reside, or may be summoned,” and that the exception authorizing an action against a railroad company “for any injury to persons or property upon the road or line, or upon any liability as a carrier,” to be brought in any county through which its road passes does not include an action of this kind, and that section 55 of the code cannot include actions against corporations, because specific provision is made with reference to them in the preceding sections.
It may be conceded, as claimed by counsel for plain tiffs in error, that chapter 123 of the Laws of 1871 does not change the law fixing the counties in which actions are to be brought; yet we hold that, construing the provisions of article 5 of the code in connection with section 63 of chapter 23 of the General Statutes of 1889, which provides that “Any action, prosecution or proceeding against a railway corporation for any liability, penalty, or forfeiture, may be brought in any county into or through which such railway runs,” an action of replevin like this may properly be brought against a railway company in any county into which its road runs. (Railroad Co. v. Brown, 29 Neb. 492.) The action being properly brought against the railway company, service on the commission company in Wyandotte county was authorized.
II. The other assignments of error discussed in the briefs may as well be considered together, for the question really is whether the judgment is supported by the pleadings, evidence and special findings of the jury. The great difficulty in the case arises from the very unsatisfactory and inconclusive character of the testimony offered, and the fact that the cattle described in the petition and in the mortgage to the plaintiff are alleged to have been four years old at the time suit was brought, while the jury find that the cattle in possession of the defendants were but three years old. Neither Conklin nor any persons who were with the cattle and knew all about the different herds owned by him in 1889 and 1890 testified with reference to where the different herds of cattle were kept or to their being moved from one farm to another. The jury had only the testimony of witnesses who saw them at intervals, and whose indentifications are not very satisfactory. They had to decide the case from the evidence before them, and as both parties were represented by able counsel, it'is to be presumed that the evidence offered on either side was the best that could be procured. The principal questrdn was one of identity of property rather than of priority of liens. If the commission company took possession of the cattle which were on Conklin’s home place in May, 1889, there 'would seem to be little doubt that ^lie plaintiff ought to recover. If, however, all the cattle in the possession of the defendants were1 either'' purchased subsequent to that date by Conklin or kept by him at that time at another place and not shown to Wilson, then the plaintiff’s mortgage could not cover them. The jury have resolved the doubts as to 90 head in favor of the plaintiff; and as 'to the balance in favor of the defendant. Their verdict seems to be based mainly on the testimony with reference to the Campbell cattle, 'which were'sold by Campbell to June,' and by June to Conklin in December, 1888.' Some of the cattle taken possession of by the commission company and shipped to Kansas City, and thence transferred to a pasture1 in Clay county, were identified by June, and more particularly by Campbell, as a part of the 100 head sold by him to June. The principal weakness of the testimony for the plaintiff'with reference to this1100 head of cattle is in the failure to show that Conklin had them at his home place when Wilson was there, and in the fact that Wilson inspected 'the cattle on which he took the mortgage and described thfem as being a year older than the Campbell cattle were in fact. Though there seems to be very great doubt and uncertainty as to the truth of the matter, we are unable to say that the conclusion of the jury is wrong. The age of an animal is not like a distinct mark or brand which can be recognized at once from a glance, but often becomes a mat ter of dispute, even among those who have considerable experience in handling cattle. The facts that Conklin owned the Campbell cattle in May, 1889 ; that he had cattle which he exhibited to "Wilson before the mortgage was given ; that the cattle shown Wilson were on his home place, where the jury probably inferred he might then be keeping all his stock; that the loan made by the commission company was for the purpose of buying other cattle, and that cattle freshly branded at places away from Conklin’s home farm were shown to Waite when the mortgage to the commission company was given, are all circumstances the jury were called on to consider. We cannot say clearly and beyond question that they erred in reaching the conclusion that the Campbell cattle were included in the plaintiff’s mortgage, and that 90 of them were taken possession of by the commission company, though they were in fact a year younger than the plaintiff alleged they were in his petition and described them in his mortgage. 'It is true that there is much uncertainty in the testimony as to the exact number of the Campbell cattle that went into the possession of the commission company, but we cannot say certainly that another jury could determine the matter more accurately.
We think the renewal affidavit on the mortgage was treated as in evidence, and the instructions given by the court were fair, and correctly stated the law. Though we have very great doubts with reference to the correctness of the conclusion reached in this case, it is not probable that another trial would result in a more satisfactory verdict. The nature of the case is such that a decision the correctness of which can be asserted with entire confidence is not to be expected.
The judgment is affirmed.
All the Justices concurring.
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The .opinion of the court was delivered by
Johnston, J.
: Richard C. Meade was charged with fraudulently and by false pretenses having obtained from Fanny Pilkington the sum of $215. The means alleged to have been employed by him were that he represented to her that George A. Vining desired to obtain a loan of $215 for three years on real-estate security, and he produced a note for that amount to -which -were attached six interest coupons, and a mortgage upon certain real estate in Atchison, all of which purported to be signed by George A. Vining and Mary Vining. He represented the papers to be genuine, and induced her to sign a check drawn upon her funds which were on deposit in a bank, and with the check drew from such funds money of Fanny Pilkington to the amount -of $215, and converted the same to his own use. It is alleged that the note, coupons and mortgage were false, forged, and fictitious ; that the defendant had forged the names to each of them; and that these false and forged writings were delivered and the false pretenses and representations were made for the purpose of cheating and defrauding Fanny Pilkington out of the sum of $215. The offense was committed on May 24, 1892, but the false and forged instruments and papers were dated June 1, 1892. After the offense was committed, the defendant fled the state. A complaint was subsequently filed, charging him with the offense, and after the issuance of a warrant extradition papers were obtained, upon which he was returned from the state of New York.
The defendant insists that he was extradited for one offense and convicted of another. The claim is that in the original warrant he was charged with obtaining the signature of Fanny Pilkington to a check by false pretenses, while the charge upon which he was convicted was the obtaining of money from her by false pretenses. The means used by him in obtaining the money were set out in the warrant with' great detail, and procuring her to sign the check upon which her money was drawn from the bank is mentioned as one of the steps in the scheme. ■ The averments in the warrant show plainly enough that the principal complaint was the obtaining of the money, and after a casual reading of the same the defendant could have had no difficulty in ascertaining the offense with which he was charged. The information was in two counts, but the state, upon motion of the defendant, was required • to and did elect to stand upon the second count, and for that reason the charge contained m the first count is no longer important. In the second count, like the warrant, it was charged that the money was obtained by false representations and pretenses, and it recited at length the making and use of the false note, coupons, and mortgage, as well as the fact that the money was finally obtained from her upon a check which he had induced her to sign. The warrant and the information were both drawn with unnecessary fullness and particularity. Every step in the scheme to obtain the money was set out at length, and hence no mistake could have been made by the defendant as to the offense of which he was accused. It is argued that the charge embraced more than a single offense. While the warrant and the information both stated facts which, of themselves, might, under some circumstances, be treated as separate offenses, it is manifest that they were only pleaded as different, steps and stages in the single offense of obtaining money under false pretenses. In the same connection, it is urged that the second count of the information charged two separate and distinct felonies — first, obtaining a signature to a written instrument by false pretenses, and also obtaining money by false pretenses, and is therefore bad for duplicity. The acts mentioned are connected with the same general offense, and under section 94 of the crimes act are punishable separately as distinct crimes when they have been committed by different persons or at different times. However, when they have been committed by the same person at the same time, they may be coupled together in a single count as constituting a single offense. In such cases each one of the acts may be considered as representing a step or stage in the same offense, and all combined may be set forth-in the same count and treated as a single violation of law. (The State v. Pryor, 53 Kan. 657.)
In the warrant it is alleged that the check was signed on June 1, 1892, whereas the information charges and the proof shows that it was signed on May 24, 1892. The discrepancy in the date is not fatal nor very important, as the check is only an incident in the transaction. It appears, too, that no other transaction of a like character was had between the defendant and Fanny Pilkington at or near the time mentioned, and the particularity with which every detail of the transaction was set out could have left no doubt in the mind of the defendant as to the specific offense he was required to answer. The discrepancy probably arose because the complaining witness did not have the possession of the check when the prosecution was begun, and as the defendant had postdated the mortgage, bond and coupons to June 1, 1892, it -was assumed that the latter date was the time when the transaction occurred.
Under the testimony, the court ruled correctly in denying the motion for a change of venue, and none of the rulings of the court in instructing the jury are deemed to be erroneous. Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.
: Arthur S. Kendall was convicted of assault with intent to commit rape upon the person of Emma Cathcart, who was under the age of 18 years. The inf ormation. charged that he did “unlawfully, feloniously and carnally know and forcibly ravish Emma Cathcart, she, the said Emma Cathcart, then and there being a female under the age of eighteen years.” Because of the allegation that force was used, the defendant assumed that two offenses were charged in the information, and moved the court to require the county attorney to elect upon which offense a trial should be had. A motion to quash the information, for the reason that the allegations did not state a public offense, was also made and overruled. Although there is a recital in the final entry of judgment that the defendant was present in person and by counsel during all the proceedings had upon the trial of the case, it is stated in another part of the record that, at the time of the filing of the motion to elect and the argument thereon, the defendant was not actually present in court. It is contended that the absence of the defendant during the filing and argument of the motion is fatal to the judgment of conviction. It is provided that ‘ ‘ no person indicted or informed against for a felony can be tried unless he be personally present during the trial.” (Crim. Code, § 207.) “A trial is a judicial examination of the issues, whether of law or fact, in the action.” (Civil Code, § 265.) And in every step of a trial for a felony the accused has an undoubted right to-be present, and be heard by himself and counsel, or either. All preliminary motions do not constitute a part of the trial, and a hearing of the motion to elect cannot be regarded as the trial of an issue in the case. The allegation in the information that force was used by the defendant was unnecessary and may properly be treated as surplusage, and in that view a hearing of the same becomes unimportant. Under the statutory provisions referred to, it would appear that the presence of the defendant was necessary upon the hearing of a motion to quash the indictment or information. A motion to quash the charge or information is an issue joined between the state and the defendant. It involves the question of the guilt or innocence of the defendant, and the determination of the motion may finally dispose of the prosecution. It is claimed that the defendant was not present during the.'argument of the motion to quash the information, but the record does not sustain the claim. A fair interpretation of the same is that the defendant was present in person during all the proceedings of the trial, except during the filing and argument of the motion to elect.
It is contended that some portions of the charge were inappropriate and erroneous, and from the language used by the court it is claimed that there could have been no evidence to sustain the charge of an attempt to commit a rape. The evidence in the case was not preserved, and we have no means of knowing what it was, nor whether it justified the instructions that were given. The claims of the prosecutrix and of the defendant in respect to the matter are stated in the instructions, but whether their testimony accorded with their claims does not appear. In the absence of the evidence we must assume that it was sufficient to sustain the verdict of the jury, and that it warranted the giving of an instruction as to what' would constitute an attempt to commit rape, as well as one in regard to the completed sexual act. It is argued that the one given concerning an attempt must be held to be incorrect in any case. The court instructed, that
“The charge in the information in this case not only includes a charge of rape upon the said Emma Cat-heart, but it also includes the charge of assault with intent to commit rape upon her, and although you should have a reasonable doubt as to whether the defendant actually committed a rape upon her, yet if you believe from the evidence, beyond a reasonable doubt, that he made an assault upon her with the intent to commit a rape — that is, that he caught hold of her and used force or violence and threats, with the intent to carnally know her, then and in that case you should find him guilty of an assault with intent to commit a rape, and in that case it would make no difference that he might have failed to accomplish his purpose.”
A fuller definition as to what would constitute an assault with intent to commit a rape might have been given, but no such instruction was requested, and the defendant has no ground to complain of the on® given. It is argued that in all such cases there must be present not only the intent to commit the offense, but some act toward its commission. If the defendant caught hold of the prosecutrix with intent to carnally know her, and used force or violence, together with threats, for the purpose of obtaining sexual intercourse with her, it cannot be said that there were no overt acts toward the commission of rape, and further, that the attempt had not progressed sufficiently toward execution to show the criminal intent of the defendant. The prosecutrix being under 18 years of age, and under the law deemed incapable of giving consent, the rule insisted upon- by the defendant with respect to consent, force and resistance is inapplicable.
In one of the instructions some strong language is used by the court in characterizing the offense of rape, and of this complaint is made. The language, however, is mainly the same as is used in one requested by the defendant-, and while it might well have been omitted from the charge, we are satisfied that no prejudice resulted to the defendant therefrom.
We find nothing in the record that warrants a reversal, and therefore 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
Martin, C. J.
•: A period of 27 years elapsed from the maturity of the last note and the indorsement of interest paid thereon before any attempt was made to recover upon the indebtedness, or to foreclose the mortgage, yet the action was not barred by our Kansas statute of limitations because of the non-residence and absence of the defendants (Civil Code, § 21), and the South Carolina statute was not pleaded. At the common law a presumption of payment arises after the lapse of 20 years, and the principal question in this case is whether such presumption obtains in this state, notwithstanding the statute of limitations. It is claimed by the plaintiff in error that the common law is adopted in this state only in aid of the general statutes, and as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people (Gen. Stat: 1889, ¶ 7281), and that the doctrine of the presumption of payment from the lapse of time is inconsistent with our statutes of limitation, and therefore cannot be recognized. In England, however, this presumption arises, and is given effect, in the courts both of law and equity, notwithstanding the limitation acts. In the ca'se of Smith v. Clay, decided in 1767, and a report of which maybe found in 3 Brown, 640, Lord Camden said: “A court of equity . . . has always refused its aid to stale demands, where the party .has slept upon his right and acquiesced for a great length of time. . . . Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.” And in Hovenden v. Lord Annesley, 2 Sch. & Lef. 607, 636, Lord Redesdale said, “that every new right of action in equity that accrues to the party, whatever it may be, must be acted upon at the utmost within 20 years.”
The federal courts have declared the same doctrine, from an early day down to the present time, refusing, independently of the statute of limitations, to entertain and enforce stale demands. (Piatt v.Vattier, 9 Pet. 405, 416, 417 ; McKnight v. Taylor, 1 How. 161; Bowman v. Wathen, 1 id. 189, 193 ; Speidel v. Henrici, 120 U. S. 377, 387, and cases cited.) The state courts very generally hold the same doctrine. Several of the decisions are cited in the foregoing cases from the supreme court of the United States, and we will refer to a few others, as follows : Cheever v. Perley, 11 Allen, 584; Kellogg v. Dickinson, 147 Mass. 432, 437, and cases cited; Bean v. Tonnele, 94 N. Y. 381, 385, and cases cited ; Matter of Accounting of Neilley, 95 id. 382, 390 ; Lash v. Von Neida, 109 Pa. St. 207; Gregory v. Commonwealth, 121 id. 611; Shubrick v. Adams, 20 S. C. 49, 53; Wright v. Mars, 22 id. 585; Dickson v. Gourdin, 26 id. 391; Stimis v. Stimis, 33 Atl. Rep. (N. J.Eq.) 468.
The presumption of payment from lapse of time differs essentially from a statute of limitations. The presumption may be rebutted by sufficient evidence, no matter how long the time may be ; but a statute of limitations cuts off the right of action, although it maybe admitted that no payment has ever been made. The. presumption of payment is based upon the experience of mankind that vouchers, acquittances and evidences of payment are not usually preserved from one generation to another ; that creditors usually desire their own without waiting a score of years upon their debtors ; and that, where there has been no recognition of the claim by the debtor, and the creditor has forborne to assert a right for so long a time, it is most probable that his claim has been in some way satisfied. The cross-petition for foreclosure in this case was in the usual form. No explanation or excuse was given for the long delay in the assertion of any right, and this seems to be necessary under several of the authorities cited. But, if this defect of pleading had been remedied, yet the facts found, and the evidence received and rejected, were insufficient to establish non-payment; and therefore the presumption of payment from lapse of time was properly held by the court below to be effective as a bar to the action, and the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.
: William M. Wells was a brakeman who had been in the service of the Atchison, Topeka & Santa Fe Railroad Company for about 18 months prior to April 15, 1890, part of the time on passenger-trains, but most of the time on freight-trains: He had been at work with the conductor and crew with whom he was associated on the date named for about three months before that time. About 10 o’clock on the night of April 15, 1890, the conductor and his crew took charge of a freight-train at Emporia and started with it for Nickerson, Wells going with them and acting as rear brakeman on the train. The train consisted of about 30 empty freight-cars, a stock-car, a fiat car loaded with telegraph-poles, and this was followed by the caboose. The telegraph-poles on the flat car. were negligently loaded, and projected over the end of the flat car, so that one of them reached within four inches of the stock-car in front of it. The bottom of the flat car was from 3 feet and 10 inches to 4 feet above the ground, and the projecting poles were about two feet above the bottom of the car. No stop -was made by the train until it reached Strong City, but there was no switching done there, nor does it appear that the attention of Wells was drawn to the car loaded with telegraph-poles. The next stop was made at Florence, where they arrived after midnight. There the train was uncoupled from the front end of the flat car by Wells, and about 10 minutes later the train was backed up toward the caboose and flat car, and Wells was directed by the conductor to make a coupling. Following the direction of the conductor, he went in, leaned over, and attempted to make the coupling, and, as he retired and raised up, Ms head was caught between one of the projecting telegraph-poles and the stock-car, so that his head was crushed and his life taken. An action was brought to recover for the loss by his surviving widow, Lucinda AVells, who was the only heir at law of the deceased, and she recovered a judgment for $4,750.
It is insisted under the facts that Wells knew the flat car to which he was about to couple the train was loaded with poles, and that he knew, or must have known, of the condition of the car prior to the accident, and therefore that he was guilty of culpable negligence in attempting to couple them in that condition. It is argued that the case comes fairly within the rule of A. T. & S. F. Rld. Co. v. Plunkett, 25 Kan. 188, and that the demurrer to the evidence filed by the company should have been sustained. The facts in the two cases respecting the knowledge or negligence of the injured persons differ in several material respects. In the Plunkett case the injury occurred in daylight, and it was admitted that he knew the condition of the weather, of the ground, and of the track, as well as any other employee of the company knew the same, and it being broad daylight and no obstruction to his vision, it -was held that he must have known of the dangers which might arise from the projecting timbers. In the present case it does not appear that the attention of Wells was called to the condition of the car at Emporia, nor at any other point on the road, until they had reached the place where the accident occurred. It was a dark, rainy night, and, while Wells had a lantern with him, it could hardly be said that his attention was called to the dangerous manner in which the car was loaded. Some of the poles projected over the end of the car much further than others, and we cannot say, as a ma|}ter of law, from the evidence, that those which projected furthest, and with one of which his head came in contact, were within his line of vision when he looked in with a view of entering to make the coupling. It will be observed that the car containing the poles was standing still, and in the nature of things his attention would be drawn particularly to the moving train coming toward him when he attempted to make the coupling. It is true tliat he had previously coupled cars iu other trains loaded with projecting poles, and that he had uncoupled the train from the car containing the poles only a few minutes before, but in the last instance he entered from the other side of the car. It may have been that none of the poles projected so far on that side of the car as to interfere with the making of the coupling, and for that reason he may not have seen or anticipated danger in entering from the other side. We do not desire to extend the rule of the Plunkett case, and the facts and circumstances of the present one are fairly distinguishable from that, and, therefore, we will not say, as a matter of law, that Wells was guilty of contributory negligence. It will be readily conceded that this is a border case on the facts, and hence we should look with great care at the manner in which it was tried.
Special questions were submitted to the jury, and when the answers were returned the defendant company objected to a number of them, for the reason that the jury had not fully and truly answered them, and the court upon request refused to direct the jury to make full and true answers to each of the questions submitted. The answers of the jury to the special questions betray a reckless disregard of the testimony and of their duty in the premises. To the question whether it was not customary for the company, during the time Wells worked for.it as a brakeman, to receive cars loaded with poles projecting over the. end of the car, the answer was, “We do n’t know” ; and they also returned a like answer to a question as to whether cars loaded in that manner had not been canned in trains upon which Wells acted as a brakeman. There was positive testimony to the effect that cars so loaded had been frequently handled in the trains upon which Wells had been acting as a brakeman. In answer to another question, the jury stated that, at the time Wells uncoupled the car from the balance of the train, he could not have ascertained the true condition in which the same was loaded. Prom the testimony, it is clear that he could have ascertained the condition, and the jury should have so answered; but whether it amounted to contributory negligence not to have noticed the condition and avoided the injury depends as well upon other circumstances. In response to the question as to whether Wells knew at the time he uncoupled the car that it was loaded with poles, and that the same projected over the end of the car, they answered, “We don’t know.” Under the circumstances, the answer was neither frank nor fair. The same may be said of the following question: “Would the deceased have been injured by the projecting ends of the timber on the car or by anything else if he had taken the precaution or care to have bent his head low enough to have been below the line of said projecting timbers ? ” Answer : “Probably he would.” The jury found that Wells bent his head and placed himself in a stooping position to make the coupling, but, in answer to an other question, whether, if he had continued, whilst making the coupling and retiring from between the cars, in the same stooping position, he would have escaped injury, the}1' answered, “We don’t know.”
“ It is apparent that the findings have been given under the influence of passion or prejudice, or, at least, that the jury have not intelligently or fully considered all the evidence. If material findings are made by the jury against the evidence, to sustain the general verdict, a fair trial has not been had. In such a case the facts should be submitted to another jury.” (S. K. Rly. Co. v. Michaels, 49 Kan. 396.)
Error is assigned on the giving and refusal of instructions. Most of those which were requested by the defendant company, and refused, were correct statements of the law, and some of them which had particular application to the facts might well have been given. The charge of the court, althotigh very general, appears to us to have fairly covered the issues in the case, and included the principles of those refused. So much of the charge as directed the attention of the jury to the rule which obtains where the negligence is malicious and wilfully or wantonly reckless was improper. There was no testimony in the case to justify such an instruction, and although the rule stated was correct as an abstract proposition of law, still it was inapplicable and would tend to confuse and mislead the iury-
Objections were made to the reception and exclusion of testimony during the trial, but, after an examination of all the testimony in the record, we cannot say that prejudical error was committed by these rulings.
For the errors mentioned, however, the judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Martin, 0. J.
: I. It is evident, from the remarks of the trial judge,- that the verdict did not meet with the approval of the court and it should have been set aside and a new trial granted, although there had been three prior disagreements. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 3, 4, 12, 13, and cases cited.)
II. Upon Freeman’s examination in chief as a witness in his own behalf, he was asked the following question: ‘' Had you any knowledge or notice that Mr. Canoose was selling this stock of goods with intent to hinder, delay and defraud his creditors? ” and he answered, “No, sir.” This is alleged as error, but the question was competent, under the authority of Gentry v. Kelley, 49 Kan. 82, 88.
III. Complaint is made of instructions given, and the court seems to have erred both to the prejudice of. the plaintiff and the defendant. At the request of the defendant below, the court gave the following instruction :
“ 2. If you are satisfied, from the evidence, that C. W. Canoose sold and transferred to the plaintiff the goods in controversy with the intent to defraud, or to hinder and delay, his creditors, then the burden falls upon the plaintiff; and before he can recover he must satisfy your minds, by the preponderance of the evidence, that he made the purchase without knowledge or notice of such fraudulent intent on the part of the said C. W. Canoose, and that all the facts, circumstances and transactions attending and surrounding such sale and transfer were not of that kind and character as should have led him, as a prudent man, to make inquiry into the intent of his vendor.”
This was error to the prejudice of the plaintiff below. A prima facie case was made out in favor of the plaintiff by showing possession of the stock of goods under a bill of sale from Canoose, who was conceded to be the owner. It then devolved upon the defendant to show that the sale was made by Canoose for the purpose of hindering, delaying or defrauding his creditors, and that Freeman knew or had reason to believe that Canoose was acting in bad faith toward his creditors in making the sale. The burden of proof did not shift by the showing of the fraudulent intent of Canoose. (Baughman v. Penn, 33 Kan. 504, 508 ; National Bank v. Beard, 55 id. 773, 42 Pac. Rep. 320, 321.) Where confidential relations exist between the vendor and the vendee, it may sometimes devolve upon the latter to show that the transfer was for a valuable consideration and' in good faith; but that principle is not applicable to this case. The court also charged the jury in instruction No. 1, requested by the defendant below, that the plaintiff was charged with knowledge of all facts that he might have ascertained by examination and inspection of the books and papers he received along with and as a part of his purchase. This is going too far. The plaintiff may not have examined the books and papers, and had he done so might have been unable to understand everything that was contained in them. The contents of such books and papers, as to any showing of indebtedness, were competent evidence against the plaintiff below, and constituted legitimate subjects of argument to the jury that the plaintiff made the purchase either in haste, without regard to the rights of the creditors of Canoose, or that he closed his eyes to facts which would have been otherwise obvious; but it was erroneous to declare, as a matter of law, that he was chargeable with a knowledge of all the facts which an inspection of the books and papers might disclose.
At the request of the plaintiff below the court gave the following instruction :
“1. The jury are instructed, as a matter of law, that it is not sufficient to vitiate a sale of personal property, that it was made by the vendor to hinder, delay or defraud his creditors. In order to vitiate such sale, as against the purchaser, he must have had knowledge or notice of such intent on the part of the seller.”
And the same principle was substantially declared in instruction 3. This was error prejudicial to the defendant below. The jury may have understood therefrom that, in order to vitiate the sale as to Freeman, he must have had knowledge or notice of the fraudulent intent of Canoose. It is not necessary, however, to show actual knowledge or notice of the fraudulent intent of the vendor. »A knowledge of facts sufficient to put one upon inquiry, which, if duly prosecuted, would have disclosed such fraudulent intent, is equivalent to actual knowledge of the same. (Bush v. Collins, 35 Kan. 535, 541, and cases cited.) This principle seems to have been recognized in the instructions given by the court upon its own motion, but we cannot harmonize these general instructions with those we have criticised, and which were requested by the parties. There is little to criticise in the general instructions given by the court to the jury on its own motion. But the province of the jury was invaded by the statement that they ought to have no particular difficulty in finding a fraudulent purpose on the part of Canoose, although there was little, if any, room to doubt that fact, and the judgment would not be reversed on this ground alone. It is best, however, under our practice, to leave all facts not admitted to the determination of the jury, without any intimation of the opinion of the trial judge.
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
Allen, J. :
Defendant in error brought suit against plaintiff in error and one Fred I. Boies, alleging that the defendants maliciously, and without probable cause, caused him to be arrested and confined in the jail of Edwards county under a warrant duly issued by a justice of the peace; that the prosecution was dismissed; that he had been subjected to loss of health, mental anguish, and greatly injured in his business and reputation, and asked judgment for $5,-000 damages.
Although it is argued that the petition states a cause of action for false imprisonment, it is very clear that it does not, but does state one for malicious prosecution. The jury awarded the plaintiff $2,500 damages— $200 for damages to business, and $2,300 for damage to reputation — against the defendant Spencer only. Damages to reputation were properly allowed, and we cannot say that the amount is excessive. The charge on which the plaintiff was arrested was that .he had given a chattel mortgage to the Edwards County Bank, of ■which Spencer was president, on certain personal property which was subject to a prior mortgage, without referring to the same in the mortgage to the bank. It appears that Cramblett was indebted to the bank in a considerable sum. The mortgage was given to secure an existing indebtedness, and Cramblett testifies that the bank was fully informed as to the existence of the prior mortgage before the mortgage to it was executed. There is evidence tending to show that the arrest was made for the purpose of extorting money from Cramblett on his indebtedness to the bank, and that Spencer fully understood that in giving the chattel mortgage Cramblett had not violated the criminal law. The case seems to have been fairly tried. The objections to the introduction of testimony were not tenable. The instructions appear fair, and while the award of damages is somewhat liberal, the evidence established a proper case for exemplary damages.
The judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J.
: The petition in this case shows that the petitioner is marshal of the city of Wichita; that a complaint was duly filed in the police court charging Henry Schnitzler, William Schnitzler, James Burns and Henry Billman with keeping a nuisance in violation of the prohibitory liquor law. A warrant was thereupon duly issued, and under it the petitioner arrested the parties, and seized certain personal property, consisting of beer, whisky, bottles, tables, and other articles found in the place described in the warrant as kept by the defendants. Afterward the Citizens’ Social Club of Wichita, a corporation, commenced a civil action before G. W. C. Jones, Esq., a justice of the peace of Wichita, to recover the property seized, which it claimed to own. A summons in replevin was duly issued by said justice, and placed in the hands of a constable. The petitioner refused to deliver the property to the constable. He was thereupon cited before said justice to answer as for a contempt in failing to deliver the property to the constable. He appeared and made answer justifying his refusal, on the ground that he had seized the property in the manner above stated, and held it subject to the order of the police court, and that the criminal prosecution against the parties named in the warrant was still pending. The justice thereupon ordered that the petitioner deliver the property to the constable, or stand committed until he comply with the order. The petitioner refused to deliver the property, and was thereupon committed to jail by the constable. He now asks this court to discharge him under a writ of habeas corpus. This can only be done if the justice of the peace was without power to make the order. Section 69 of the act regulating procedure before justices of the peace expressly gives a justice power to commit any person having the possession of property sought to be recovered in an action of replevin who refuses to deliver it to the officer serving the process. The contention of the petitioner is that, as this property was seized under paragraph 2544 of the General Statutes of 1889, and held subject to the order of the court, it was in the custody of the law and could not be replevied. Cases from Maine, Massachusetts and Iowa are cited in support of this position. We find, however, on an examination of those statutes, that provision is made for giving public notice of the seizure of the property. Any person claim ing the property may have a hearing and his rights determined by the court before which the case is pending. No such provision is made by the statutes of this state, and, as police courts have no civil jurisdiction, if the marshal can retain possession of the property as against a person other than the one against whom the warrant was issued, and destroy the same in pursuance of the order of the court, the rights of one person will be determined in an action against another without any opportunity of having his day in court. The constitution guarantees to every person a remedy by due course of law for injury to person or property. This unquestionably means the right to a day in court. The cases of Easter v. Traylor, 41 Kan. 493, and Ament v. Greer, 37 id. 648, declared rules decisive of this case against the petitioner. While it is a valid defense in the action of replevin that the property in controversy was kept for,the purpose of maintaining a nuisance in violation of the prohibitory law, either by the plaintiff or other persons, with its knowledge and consent, the plaintiff has a, right to prosecute the action and to try the question before the court, whether the property was so kept and used or not.
The prayer of the petitioner for a discharge is denied.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J.
: B. C. Arnold gave bond for his appearance at the district court of Ellis county, and in the meantime to kéep the peace. He appeared as required by the terms of Ms bond, and the court thereupon entered an order discharging him, and requiring him to pay the costs of the proceeding, taxed at $4.60. Prom this order he seeks to appeal. The papers were first filed in the court of appeals, western division of the northern department, and were afterward certified to this court. The state challenges the right of the defendant to appeal.
In Mitchell’s Case, 39 Kan. 762, it was held that the payment of costs in a proceeding of this kind could not be enforced by imprisonment of the defendant. In In re Boyd, 34 Kan. 570, it was held that a judgment for costs in a criminal case is no part of the punishment of the offense
This proceeding was not a criminal prosecution for the purpose of punishing the defendant for the commission of a crime, but was a proceeding to prevent the commission of an offense, under article 2 of the code of criminal procedure. The extent of the judgment which the court could render ;against the defendant was to require him to give a new recognizance and to pay the costs of the proceeding. The judgment in this case is for costs only, which amount to but a trifling sum; but whether much or little, this is not such a judgment as a defendant may appeal from under section 281 of the code of criminal procedure. That section has reference only to judgments inflicting some punishment on the defendant.
No appeal lies either to the court of appeals or to this court, and the case is dismissed.
All the Justices concurring.
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Per Curiam:
The plaintiff in error brought its action against the defendant in error to recover upon a promissory note of date March 1, 1889, for $3,000, payable to the Hall and Martin Bank, of Colby, signed by C. H. Martin, and indorsed “The Hall and Martin Bank, by E. A. Hall, Cashier,” and “E. A. Hall.” It was alleged that the Hall and Martin Bank indorsed and transferred said note, on or about March 4,1889, to M. B. Abell for $2,822.35, and that Abell sold, transferred and delivered the same to the plaintiff, on or about March 8, 1889, for a valuable consideration. The defendant admitted the execution of a note of the date, amount and description set forth in the petition, but denied that the note sued upon was the same one that was executed by him, and further alleged that the note which he made was without consideration, and was executed for accommodation only, upon the representation of E. A. Hall, cashier, that it was to be used for the purpose of taking up a certificate of deposit of like amount, the holder having consented to surrender the same in exchange for such note, and that this representation of Hall was false and fraudulent. The defendant was the president of the Hall and Martin Bank, but had little to do with its active management. During the latter part of Februaiy and the earlier days of March he was in the neighborhood of Clifton, Kan., on business, and while there, it would seem from the evidence, that Hall executed a $3,000 note with the name of the defendant signed thereto as maker, and also a property statement purporting to be signed by the defendant, both of which were sent to James S. Warden, then cashier of the National Exchange Bank, at Kansas City, Mo., and that Hall also wrote to the defendant, inclosing a note ready for his signature, and requested him to sign and return it; but the defendant retained it until he got back to Colby, and on March 5 he executed the same, on the representation of Hall, as before stated. It is probable that Hall intended to substitute this note for the other one which he had signed and forwarded to Warden. On March 1, Hall entered on the books a note of the same description and date. Whether the plaintiff obtained the genuine note or the one which had been signed by Hall was the principal question in the case. Abell testified that he often negotiated for notes on property statements and descriptions before the arrival of the paper, and that he sometimes sold the same in like manner. It is shown beyond question that the genuine note was not executed until March 5, although dated March 1, and in answer to a particular question of fact submitted' by the plaintiff, the jury found that the name signed to the note sued on was not the genuine signature of the defendant, and this finding is supported by a preponderance of the evidence. A singular circumstance disclosed by the record is that suit is brought on an instrument containing no words of negotiability and no guaranty of payment, while the evidence as to the note held by the plaintiff is that it was payable to the order of the Hall and Martin Bank, and a guaranty of payment was written on the back thereof; and these variances between the allegations and the proofs are in no way explained. Several questions have been ably argued by counsel for plaintiff which, in view of the restrictions contained in the record as to the questions to be presented, and the further finding of the jury that the note sued on was not the genuine paper executed by the defendant, we deem unnecessary to consider. The plaintiff claims, among other things, that, even if the note sued on was a forgery, the defendant ratified the same by an acceptance of the benefits of the money received from Abell, but there is no proof that the defendant, the Hall and Martin Bank, or even Hall, received any benefit from the money which Warden obtained for the note, and the defendant knew nothing of the existence of the note which Hall had signed, and which, it seems from the findings of the jury, must be the one upon which suit was brought.
The judgment must be affirmed.
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The opinion of the court was delivered by
■ Allen, J.
: This was an action of ejectment brought by Willard R. Douglass against Geor.ge M. Noble and others, as defendants, to recover a quarter-section of land in Jefferson county. The plaintiff claimed title under a tax deed to John C. Douglass, based on the taxes of 1863, and a quitclaim deed from John C. Douglass and wife to him. The defendant claimed title under a tax deed, based on a sale for the taxes of 1873 to the county, and an assignment of a tax-sale certificate in accordance with chapter 43 of the Laws of 1879, authorizing the county commissioners to compromise delinquent taxes. The deed bears date March 6, 1880, and recites the issuance of a sale certificate by authority of the county commissioners on the 4th day of September, 1879. On the 18th of June, 1880, John C. Douglass, as the agent of the plaintiff, tendered to the holder of the tax deed a sum of money, which, if the tender was in time, was sufficient in amount to redeem the land. The tender was refused.
This action was commenced on October 27, 1887. On the trial the plaintiff, in order to show that he had a right to redeem the land at the time the tender was made, offered evidence tending to prove that the tax-sale certificate on which the defendant’s deed was issued was not executed by the treasurer and assigned by the county clerk on the 4th day of September, as recited in the deed, but that it was in fact so executed and assigned in February, 1880. The trial court found that the sale certificate was assigned by the county clerk to Mary J. Pryor, under whom the defendants claim, on the 11th of February, 1880, and the plaintiff’s tender was therefore made within the six months allowed by the act of 1879 for redemption.
I. It is contended by counsel for plaintiffs in error, with much earnestness and ability, that after the expiration of five years from the date of the tax deed its recitals with reference to the assignment of the sale’s certificate, as well as all other matters except the payment of the taxes, become conclusive ; that the statutory limitation requiring an action to recover the land to be brought within that time protects the holder of the tax deed against all contradiction of such recitals ; that the testimony introduced by the plaintiff, ostensibly for the purpose of showing a tender of redemption, in fact tended to show the absolute invalidity of the deed, because issued before the law authorized its issuance. Section 141 of the tax law reads :
“Any suit or proceeding against the tax purchaser, liis 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.” 6995, Gen. Stat. 1889.)
Under the law of 1879, the plaintiff had the right to redeem the land at any time within six months after the assignment of the sale certificate. The county clerk could not deprive him of this right by prematurely issuing a tax deed. He had an unqualified and absolute right to redeem his land at any time within the six months, and a tender of the required amount was equivalent, for the pui’pose of avoiding the bar of the statute, to payment. The exception contained in section 141, above quoted, is unqualified. Where payment of the taxes has been made, or a tender equivalent to payment, the statute does not run, and affords no protection to the holder of the tax deed. We perceive no valid ground on which we can, by construction, qualify, limit or avoid the full scope of the exception as made in the law.
II. On the trial, J. 0. Douglass testified :
"I found what they call a stub-book of tax-sale assignments of this kind, which satisfied me that I had evidence to sustain my own position, and then I proceeded as soon thereafter as I could to make this tender, on the theory that the assignment was not made until February, after I had examined the record.”
Tire record recites that
' ‘ The plaintiff offered in evidence a bound book of stubs of tax-sale certificates, and offered testimony of the county treasurer of said county, showing that said book was found in the vault of the office of the county treasurer of said county, and that the same was the stub-book referred to by J. C. Douglass in his testi mony above given. In this stub-book, the stubs generally were in the order of the dates of the assignments of the tax-sale certificates, respectively, but the stub of the certificate in question was found between stubs of certificates the dates of the assignments of which were in February, 1880.”
This evidence was duly objected to, but the court admitted it. This stub-book was not admissible under section 387 of the code of civil procedure. It could hardly be called a book of account, and there was no proof whatever as to when the entries were made, who made them, nor of their correctness. Nor are we able to perceive how it was admissible under paragraph 4483 of the General Statutes of 1889. Our attention is not called to any law requiring any such book to be kept. It was suggested 'on the argument that, by section 67 of chapter 25 of the General Statutes of 1889, the treasurer is required to keep just and ■ true accounts of the receipts and expenditures of his office in a book or books for that purpose, and that section 156 of the tax law makes it the duty of the auditor and attorney general to prepare and transmit to the county clerk general forms and instructions. Our attention is not called to any instruction requiring the keeping of this stub-book, nor are we able to find, either in the law or the case-made before us, anything indicating what entries, if any, should appear in the stub-book. We cannot take judicial notice of the action of the auditor’and attorney general under this section, nor of the instructions they tmay have issued thereunder to county clerks. The stub-book was improperly admitted in evidence. As this evidence seems to have been mainly relied on by the plaintiff to show the time when the sale certificate was in fact assigned the error was material, and compels a reversal of the case.
III. There was also error in rendering judgment against all the defendants except Thompson and Polk for $700 damages for the use and occupation of the land.
The finding of the court is that Hannah E. Hillyer took possession of the land and held it until her death, which the record shows occurred on the 29th of April, 1887. The defendants against whom judgment was rendered are her heirs. The mere fact that they are such heirs does not render them personally liable for her debt, and there is nothing in the record to show that they have received, either as her heirs or otherwise, the proceeds of the rents and profits of the land.
Judgment reversed, and a new trial ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Martin, C. J.
: I. The petition was good as against a demurrer, but the charge of negligence was vague and general, and the motion to make more definite and certain ought to have been sustained. (Civil Code, § 119 ; H. & St. J. Rld. Co. v. Fox, 31 Kan. 586, 590 ; Mo. Pac. Rly. Co. v. Merrill, 40 id. 404, 406 ; A. T. & S. F. Rld. Co. v. O’Neill, 49 id. 367, 385.) We think, however, that the error was not prejudicial to the defendant below, for the following reasons : The casualty occurred at midday, in the presence of several persons, and his fellow employees knew that French was killed by falling off the pilot and being run over by the cars, and before the trial of the case all the evidence offered on the part of the plaintiff relating to the occurrence was taken by deposition, and thus the defendant below had much better knowledge of the facts relied on by the plaintiff below than the court could have required to be set forth in any petition. Mo. Pac. Rly. Co. v. Merrill, supra, was an action for damages by fire. The charge of negligence was general, and the railway company asked that it be made more definite and certain by stating whether, a freight- or passenger-train was charged with setting out the fire, and whether it was running east or west, and this court was of opinion that the motion should have been sustained ; but in the opinion the court says (p. 406) :
“The record discloses, however, that no prejudice resulted to the company from the ruling made. Some of the servants of the company were present when the fire escaped, and assisted in putting it out, and one of them reported to the company the cause and the extent of the injury. They had the same information as to which locomotive and train were passing as Merrill liad, and therefore the company suffered no inconvenience in this instance from the indefinite - ness of the petition. As the court is invested with considerable discretion in passing on motions of this kind, and as no prejudice resulted to the company, the ruling of the court cannot be regarded as reversible error.”
II. The defendant below filed motions to suppress the depositions of several witnesses, mainly on the ground that they were not properly entitled in this action. They were taken without formal notice, but upon stipulations signed by counsel for the parties, and these were entitled, “Anna French, plaintiff, v. The St. Louis & San Francisco Railway Company, defendant,” and the title was so indorsed on the envelopes in which the depositions were transmitted. Counsel for the railway company say that they stipulated for taking depositions in a case in which Anna French was plaintiff in her individual capacity, and that they were used in a case wherein she sued as administratrix of the estate of Frank French, deceased. There is no suggestion, however, that Anna French ever brought suit in said district court against the defendant below in her individual capacity, and this could have been easily shown, if true. Counsel for the defendant below appeared on the taking of the depositions and fully examined the witnesses, and could not have been misled as to the case in which the depositions were to be used, and this defect .is therefore of little consequence and should be disregarded. (Civil Code, § 140 ; Laithe v. McDonald, 7 Kan. 254; Whitaker v. Voorhees, 38 id. 71; Babb v. Aldrich, 45 id. 218.)
III. The plaintiff in error claims that no negligence was shown on its part, and that the death of' Frank French was the result of his own negligence, or was accidental, and, among others, the case of McDermott v. A. T. & S. F. Rld. Co., ante, p. 319, 43 Pac. Rep. 248, is cited as applicable. There are some points of similarity between this case and that. In each a brakeman was killed while making a flying switch, by falling on the track and being run over by the cars. But in that case the jury found that the engineer was under the control of the brakeman as to slacking up and going ahead, and that the engineer obeyed the signals given him by the brakeman ; and it appears that the latter was on a car not seemingly in a place of unusual danger when he was jolted off at the crossing of another railroad track. In the present case, however, the brakeman was known by the engineer to be in a place of unusual peril, with a very slight foothold, and little opportunity of steadying himself; and the evidence on the part of the plaintiff shows that the engine was moved suddenly and rapidly after the pulling of the pin, without any signal from French. As to the plan of taking out the cars and putting them in the train by the method of a flying switch, the conductor testified that he did not remember of giving any orders, but that it was just a mutual understanding that it Avas necessary to do it that Avay, and that they did the work just as they had always done in taking cars out from that track to place in a train ; and the fact that the conductor took a position at the east switch-stand of the stock track is a circumstance tending to show that he expected the work to be done by means of a flying SAvitch. And if this was the usual and quicker method, and that which the conductor either ordered or acquiesced in, we cannot declare, as a matter of law, that French was guilty of negligence by participating in the work, although it was not the safest method ; and whether he was in the exercise of ordinary care or not was a question for the jury to determine; and there was evidence of negligence on the part of the engineer which, if credited by the jury, was sufficient to justify their general verdict in favor of the plaintiff below.
IY. The verdict was for the sum of $4,500, and the plaintiff in error claims that this is excessive. At the date of his death Frank French was 34 years of age, and his life expectancy was 32 years. He was the only son of the plaintiff, a widow, then 59 years of age, and was a single man, earning $60 to $75 per month, and he had resided with and wholly supported his mother for 10 years. The trial court approved the verdict, and it is not so excessive as to warrant interference by this court.
Some questions are raised upon the admission of testimony and as to certain answers _ to particular questions of fact, but we do not deem them material.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
• Martin, C. J.
: The sole question in this case is whether or not the court erred in granting a postponement of the hearing of a motion. On April 11, 1891, the plaintiff recovered a judgment in said court against the Kansas City Radiator and Iron Foundry Company, a corporation, for $37,-770.77. Execution having been issued and returned unsatisfied, the plaintiff, on June 23, 1891, filed his motion for execution against the defendant as a stockholder of said corporation. On July 25, 1891, the defendant filed an answer to said motion, alleging, among other things, that said judgment was fraudulent and void, and upon his' application the hearing was postponed until September 21, 1891, being the first day of September term. On August 10, 1891, the defendant and 13 others filed a petition alleging that they had been proceeded against severally as stockholders by motion, and asking that paid judgment be vacated and set aside as to them, and that further proceedings upon said several motions be enjoined; and, the district judge being absent from the county, application was made to the probate judge for a temporary injunction, which was granted on the giving of an undertaking in the sum of $1,000 conditioned as required by law. On September 21, 1891, the motion of the plaintiff for leave to issue execution against the defendant came on to be heard, but the deféndant objected to further proceedings thereon, and asked a postponement until the dissolution of said temporary injunction ; and after the hearing of the evidence upon said objection, the court ordered that the hearing of said motion be postponed until such time as further orders should be made in said injunction proceedings, to which ruling the plaintiff excepted, and this proceeding in error is prosecuted to reverse said order of the trial court.
It is contended on the part of the plaintiff that this order of postponement was an unwarrantable interference with his right to proceed upon motion as authorized by the statute ; that the petition in the injunction case did not state a cause of action; that said injunction order was void; that no service had been obtained upon him; and that all matters between the plaintiff and the defendant could he litigated as well upon said motion as in an independent action. We deem it unnecessary to discuss the merits of these claims further than to say that the order of procedure of the district court is largely within its discretion, which may be exercised, among other things, with a view to economy of its time. (Civil Code, §§ 314, 316 ; Green v. Bulkley, 23 Kan. 130, 134.) Fourteen separate motions were pending for execution against stockholders of this corporation. The action to vacate the judgment and to restrain further proceedings on the motions was well adapted to test the rights of all parties at once, and this might save much time. It could not be presumed that the court intended an unreasonable postponement with a view to embarrass the plaintiff in obtaining his rights. The record does not even show that it was the purpose of the court to continue the motion over the term. It has been often decided that the granting of a continuance or postponement is much within the discretion of the trial court, and, unless it is apparent that such discretion has been abused, this court will not reverse the ruling. (Davis v. Wilson, 11 Kan. 74, 81; Bliss v. Carlson, 17 id. 325 ; Harlow v. Warren, 38 id. 480 ; Westheimer v. Cooper, 40 id. 370; Clouston v. Gray, 48 id. 31, 36.)
The record does not show an abuse of discretion by the district court, and its judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Lockett, J.:
Defendant Solly Thompldns appeals his convictions for first-degree premeditated murder and burglary. He contends that the trial court erred in instructing the jury on first-degree premeditated murder, failing to grant a mistrial, and admitting his probationary status into evidence.
Thompldns and his wife, Frances, had a turbulent relationship. Each had been physically aggressive with the other at various times. Frances had burned Thompldns with a curling iron and, at one point, had to be prevented from obtaining a knife to go after Thompldns. In 1991 and 1992, Frances was granted two petitions for restraining orders against Thompldns, but she later dismissed both petitions.
In August 1994, the couple separated and Frances and her daughter moved to her mother’s home. Subsequently, Thompldns began removing items from the couple’s home such as the television, air conditioner, and furniture. To vent her anger, Frances trashed the home. On August 29, 1994, Frances applied to the district court for a third “protection from abuse” temporary restraining order. A final restraining order, granted on October 14, 1994, ordered Thompldns to refrain from contact with Frances for 1 year. Frances then retained an attorney to represent her in a divorce.
Around 11:30 a.m. on October 22, 1994, Thompldns arrived at Donnelly College where Frances worked and was a student. When Frances’ class ended, Thompldns approached her. After engaging in a heated discussion, the pair got into Frances’ car and left the college. Shortly thereafter, Officer Rodney Green noticed Frances and Thompldns sitting in a parked car. After Officer Green heard the car’s horn honk, he slowed down and observed the couple struggling. Officer Green then saw Thompldns get out of the car and run. Next, Frances stepped out of the car, covered with blood.
Officer Green pursued Thompldns. Thompldns ran to a private residence, kicked open the back door, and entered the home. When a backup officer knocked at the door, Thompldns appeared and stated that the home belonged to his parents. The home actually belonged to an acquaintance of Thompldns. The officers entered the house, followed Thompldns into the kitchen, and noticed Thompkins was wearing a woman’s skirt. When the officers requested identification, Thompkins obtained identification from his trousers, which were in another room and were covered with blood. In the pocket, the officers found Frances’ wedding and cocktail rings. The officers later found a bloody sweater and two black gloves belonging to Thompkins in the basement next to the washing machine.
When another police officer, Granger, arrived at the scene, he found Frances slumped over in the driver’s seat of her car. Granger observed a 13-inch butcher knife lying on the ground. Attempts by paramedics to revive Frances failed, and she died at the scene. At trial, the pathologist testified that Frances had sustained a 3-inch stab wound to her right side, a 3-inch stab wound to her left chest, and a 7-inch wound that severed her pulmonary artery. She also sustained multiple abrasions and contusions to her face, blows to her head and lip, a bruise and contusion under her chin, and abrasions on her thighs. Several of her false fingernails were ripped and tom. The pathologist also noted defensive wounds on Frances’ hands. When Thompkins was examined for wounds after his arrest, the only wound found was a small puncture wound on his hand. Thompkins’ fingerprints were not found on the knife.
At trial, Thompkins was the sole witness for the defense. He testified that Frances was a violent individual who would resort to any weapon at hand when angry. He stated that, in the past, Frances had assaulted him with hot syrup, a skillet, several knives, and a hot curling iron. •
Thompkins testified that on the fatal day, he walked to Donnelly College to tell Frances that he planned to leave town and to discuss with her the future of their daughter and the sale of their residence. Frances agreed to let him ride in her car so they could talk. After driving away from the college, Frances informed Thompkins she had filed for divorce. Thompkins stated he told Frances that as long as she was wearing his rings, she would be his wife. Frances then parked at a curb, threw her rings at him, and began a heated discussion.
During the discussion, Thompkins noticed a patrol car drive by. At that point, he testified that Frances was holding a knife. He stated he grabbed Frances’ hand and the knife “poked her in the side.” He claimed Frances threatened to kill him and, as they struggled over the knife, the knife “hit” Frances in the chest twice. Thompkins stated that he never intended to harm his wife, but only to respond to her actions. He testified that when he broke into his friend’s residence, his intent was to hide from the police, not to steal.
Thompkins was charged with one count of first-degree murder under alternate theories of premeditation and felony murder, aggravated robbery (of Frances’ two rings), assault and battery of Frances, burglary (of his friend’s residence), and two misdemeanors. The premeditated murder charge was dismissed at the preliminary examination. After a jury trial, Thompson was convicted of first-degree premeditated murder and burglary. He appeals his convictions, claiming the trial court erred in (1) instructing the jury. on first-degree premeditated murder after the judge discharged him on that charge at the preliminary hearing; (2) failing to grant a mistrial when a witness improperly referred to his post-arrest silence; and (3) admitting into evidence the fact that he was on probation when the crime was committed. To determine the issues Thompkins raises in this appeal, it is necessary to review the proceedings prior to trial in detail.
PROCEEDINGS
At the conclusion of the preliminary examination, the district judge found that since there was no evidence of premeditation, the evidence was insufficient to bind Thompkins over on the premeditated first-degree murder charge. Thompkins was bound over for trial on the other felony charges, and immediately arraigned on first-degree felony murder, aggravated robbery, assault, battery, and burglary even though the State had not filed an information charging the crimes for which the defendant was bound over, as required by K.S.A. 22-2905.
After the judge dismissed the premeditated murder charge at the preliminary examination and arraigned the defendant on other charges, the State chose neither to follow the statutory procedure to appeal the dismissal of the premeditated murder charge nor to dismiss the complaint and file a new complaint charging premeditated murder. The State did not even file a motion requesting the judge to reconsider dismissal of the premeditated murder charge. Instead, on February 8, 1995, without having filed an information charging the crimes for which Thompkins had been bound over, the State elected to file an amended information charging Thompkins with premeditated first-degree murder as well as with the crimes for which he had been arraigned and to which he had pled not guilty at the arraignment.
On February 13,1995, the State filed a motion to proceed under the amended information. At the subsequent hearing on the motion, the State contended that it was not asking the trial judge to reverse the other judge’s ruling dismissing the premeditated murder charge at the preliminaiy examination, as “that matter [could] effectively be taken up on appeal by the State, if necessary.” Instead, the State asked the trial judge to allow the case to proceed to trial under the amended information which charged both theories of first-degree murder, i.e., premeditated and felonymurder.
In denying the State’s request to proceed under the amended information, the trial judge found that the preliminary examination judge’s ruling finding no probable cause to bind Thompkins over for arraignment on a premeditated murder charge was an adjudication that was “res judicata as far as this case is concerned.” The judge stated that, under normal circumstances, if the State had charged felony murder, he would have allowed the State to amend the information to charge the defendant with premeditated murder. The judge concluded that since there had been a previous adjudication that there was insufficient evidence of premeditation to bind Thompkins over on that charge at the preliminaiy examination, the State had no statutory authority to amend the information to charge premeditated murder.
After its motion to proceed under the amended information was denied, the State suggested that if it presented sufficient evidence of premeditated murder during the trial, the judge could instruct the jury on all crimes supported by the evidence. The district judge stated, “I don’t think either party would disagree the Court has the ability to mold the charge to fit the facts at trial. ... I think this Court has the ability and statutory authority to amend the charges to reflect what the evidence is that is adduced at trial.” Presumably the judge was referring to K.S.A. 22-3201(e), which provides that the court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced. Based upon the judge’s ruling, the prosecutor stated that she would not refer to premeditation in her opening statement. Defense counsel did not object to the State’s suggestion.
In a subsequent pretrial conference, the district judge stated:
“The only other issue we have to clarify is that I'm not touching Judge Boeding’s prior ruling dismissing premeditated murder from its Information. Any evidence, as long as it’s relevant, probative, and part of the res gestae, whether it deals with premeditation or felony murder, I’ll allow in to determine if, in fact, there will be enough evidence of premeditation to, in fact, instruct the jury on that. The State has to go under the theory of felony murder in voir dire and opening remarks. You can’t make references to premeditated murder.
“After all the evidence is in, I’ll make another ruling as to whether or not premeditated should come in or not. That ruling will determine how we go into closing remarks and instructions.”
Again, defense counsel made no comment or objection to the trial judge’s ruling.
At trial, the State referred only to the charge of felony murder in the opening statement. At the close of the State’s evidence, the judge dismissed the misdemeanor assault and batteiy counts. The parties then addressed whether there was sufficient evidence for the judge to instruct the jury on premeditated murder. The State asserted that the repeated stab wounds, the location of the stab wounds, Thompldns’ attempts to locate Frances, which included two phone calls prior to her death, and a statement Thompldns had made to officers that his wife was going to leave him and “this” was the only way he (Thompldns) could keep her was sufficient evidence for an instruction on premeditated first-degree murder. The trial judge agreed with the State, found that the evidence supported a reasonable inference of premeditation, and subsequently instructed the jury on both premeditated and felony first-degree murder.
Although defense counsel had previously argued that the evidence was sufficient to support only a second-degree murder or voluntary manslaughter instruction, defense counsel did not object to the instruction on first-degree murder. The jury convicted Thompkins of premeditated first-degree murder and burglary and acquitted him of the aggravated robbery charge. Although the jury had been instructed that it could convict on either or both theories of first-degree murder, because the jury found Thompkins not guilty of the underlying felony, aggravated robbery, it could not convict him of felony murder.
In his post-trial motion for new trial, Thompkins claimed the trial court had erred in admitting improper evidence, failing to declare a mistrial, and violating his due process rights. The basis of his due process claim was that (1) after the dismissal of the premeditated murder charge because of insufficient evidence at the conclusion of his preliminary examination, the State had failed to follow any of the statutory procedures available to challenge the judge’s dismissal of that charge and (2) after the State’s motion to proceed under the amended information was denied, the trial judge had violated his rights by reinstating the charge of and instructing the jury on premeditated murder. The trial judge denied the motion for a new trial and sentenced Thompkins to life imprisonment without possibility of parole for 25 years for premeditated first-degree murder and 17 months’ imprisonment for burglary. When his notice of appeal was filed, the defendant included additional issues that were not raised before the district court.
DISCUSSION
Before we determine Thompkins’ claims, we note that the State, without following the statutory procedure to appeal, claims that (1) Judge Boeding’s order discharging Thompkins on the premeditated murder charge at the preliminary examination was erroneous because the judge did not consider the evidence presented in the light most favorable to the State and (2) the trial judge erred in denying the State’s pretrial motion to amend the information to add the charge of first-degree premeditated murder. Since the State failed to raise these issues properly, we are precluded from considering them in this appeal. State v. Alderson, 260 Kan. 445, Syl. ¶ 7, 922 P.2d 435 (1996).
I. Premeditated Murder Instruction
Murder in the first degree is the killing of a human being committed intentionally and with premeditation or in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto. K.S.A. 21-3401. Aggravated robbeiy is defined as an inherently dangerous felony. K.S.A. 21-3436(a)(4). Although we have stated premeditated murder and felony murder are not separate and distinct offenses, we have noted that the type of evidence necessary to prove each of the first-degree murder charges is different. State v. Barn-cord, 240 Kan. 35, 38, 726 P.2d 1322 (1986). First-degree premeditated murder, K.S.A. 21-3401(a), is the killing of a human being done intentionally and with premeditation. Intentionally means conduct that is purposeful and willful, not accidental. PIK Crim. 3d 56.04(d) (1994 Supp.). Premeditation means that there was a design or intent before the act; that is, the accused planned, contrived, and schemed before HUing the victim. PIK Crim. 3d 56.04(b) (1994 Supp.).
The ostensible purpose of the felony-murder doctrine is to deter those engaged in dangerous felonies from killing negligently or accidentally, and the doctrine of felony murder is. not to be extended beyond the rational function it was designed to serve. To invoke the felony-murder rule, there must be proof that a homicide was committed in the perpetration of, or an attempt to perpetrate, a felony and that the collateral felony was one inherently dangerous to human life. State v. Brantley, 236 Kan. 379, Syl. ¶¶ 1, 2, 691 P.2d 26 (1984).
Although first-degree premeditated murder and felony murder require different types (elements) of proof, under certain circumstances, the accused may be charged with and convicted of both types of first-degree murder. In State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978), the court noted that when an information charges the defendant with premeditated murder and felony murder for the commission of a single homicide, and the State intro duces evidence on both theories at the trial, the trial court should instruct the jury on both theories in the alternative in order to avoid confusing the jury. 223 Kan. 554, Syl. ¶ 1. The court noted that where an information charges a defendant with murder in the first degree on both theories — a premeditated killing and killing while in the perpetration of a felony — a defendant is not prejudiced because the State has previously apprised the accused that it is proceeding on both theories of first-degree murder and that it intends to produce evidence on each theory. 223 Kan. at 556 (quoting State v. Lamb, 209 Kan. 453, Syl. ¶ 9, 497 P.2d 275 [1972]). The court observed that if Jackson had been separately sentenced for both first-degree murder convictions as the result of one homicide, clearly this would constitute double punishment for a single death and could not be allowed to stand. 223 Kan. at 557. In other words, under circumstances where the accused intends to kill the victim prior to committing a robbery, commits the robbery and kills the victim, the accused may be charged and convicted of each type of first-degree murder. However, since there is only one death, the defendant can only be sentenced for one first-degree murder.
Here, Thompkins was discharged on the charge of first-degree premeditated murder at the preliminary examination because the judge conducting the hearing found there was no evidence of premeditation. In addition, the trial judge had denied the State’s motion to proceed under an amended information that included a charge of first-degree premeditated murder. Thompkins argues that, under these circumstances, it was unfair for the State to prosecute and convict him of premeditated first-degree murder.
In response to this argument, the State first points out that Thompkins did not object to the premeditated murder instruction but raised the issue for the first time in a motion for a new trial. It notes that generally, no party may assign as error the giving of an instruction unless he or she objects before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). Thompkins counters that, under the circumstances, because the instruction was clearly erroneous and prejudiced his substantial rights, he properly raised that issue in his motion for new trial. See K.S.A. 22-3501. We note that although the defendant failed to object to the instruction, a review of the record shows that he did raise the denial of his due process rights in a motion for new trial.
The primary argument advanced by the State to support the propriety of giving the premeditated murder instruction is that premeditated murder and felony murder are not two different crimes but, under K.S.A. 21-3401, are merely two theories of committing first-degree murder. The State asserts that, when a defendant is bound over on one theory of first-degree murder, if the evidence is sufficient at trial, the judge has statutory authority to instruct the jury on the other theory of first-degree murder. To support this assertion, the State notes that K.S.A. 22-3201(e) provides that the court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.
To support its claim, the State first cites State v. Smith, 225 Kan. 796, 594 P.2d 218 (1979). In Smith, following the preliminary examination, Smith was bound over on premeditated murder. Prior to trial, the State amended the information to charge felonymurder committed during the perpetration of a theft. On appeal, the Smith court focused on Smith’s claim that he had been prejudiced by the amendment. The court found that Smith’s failure to question the sufficiency of the preliminary examination by a motion to dismiss pursuant to K.S.A. 22-3208 constituted a waiver of that issue on appeal. 225 Kan. at 798. Here, unlike Smith, Thompkins challenged the sufficiency of the evidence of premeditated murder at the preliminary examination and won; therefore, Smith does not apply.
In further support, the State cites State v. Richardson, 256 Kan. 69, 883 P.2d 1107 (1994), where the complaint charged the defendant with first-degree felony murder and aggravated robbery. Before arraignment, Richardson was notified that if she was convicted of aggravated robbery, the State intended to seek the hard 40 sentence. A few days prior to trial, the State orally amended the information to include premeditated murder as an alternative the oiy of a first-degree murder charge. The State failed to notify Richardson that it would also request imposition of the hard 40 sentence if she was convicted of that crime. Richardson was convicted of premeditated murder and sentenced to life without possibility of parole for 40 years. On appeal, Richardson did not challenge the propriety of the amendment of the information to charge premeditated murder, but instead argued that the hard 40 sentence was illegally imposed for that crime because, at the time the notice required by K.S.A. 1993 Supp. 21-4624(1) was filed and served, she was charged with felony murder and aggravated robbery, not premeditated murder. She claimed that the hard 40 sentence could be imposed for felony murder based upon aggravated robbery, but not for premeditated murder.
In rejecting this claim, the Richardson court noted that both premeditated and felony murder may be charged, as first-degree murder under K.S.A. 1993 Supp. 21-3401. The court observed that aggravated robbery charged in the information was also included in the list of inherently dangerous felonies in K.S.A. 1993 Supp. 21-3436. It noted that when the district attorney filed and served notice that he intended to request a separate sentencing proceeding pursuant to K.S.A. 1993 Supp. 21-4624, Richardson was charged with felony murder and aggravated robbery. 256 Kan. at 73. The Richardson court framed the issue as whether notice that the prosecutor intends to seek the hard 40 sentence for a crime charged in the information allows the hard 40 to be imposed for conviction of a crime not charged at the time statutory notice was given. 256 Kan. at 75.
The Richardson court observed that K.S.A. 1993 Supp. 22-3201(e) provided the court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced. 256 Kan. at 75. Then, after finding that the hard 40 notice for the aggravated robbery conformed with the statute, the Richardson court observed that since K.S.A. 1993 Supp. 21-4624(1) provides for filing of the notice of intent to seek imposition of the hard 40 sentence “[i]f a defendant is charged with murder in the first degree,” under the circumstances, the hard 40 sentence for premeditated murder was proper since Richardson had previously been notified that the State had intended to seek the hard 40 sentence if she was convicted of an inherently dangerous crime. 256 Kan. at 75-78.
The State now relies upon the rationale of Richardson to argue that premeditated murder and felony murder are not different offenses, but rather two theories of culpability for the same offense. However, the rationale of Richardson does not apply to Thompkins because the facts in Richardson are distinguishable. Here, there had been a judicial determination at the prehminary examination that there was absolutely no evidence of premeditation, and later the trial judge refused to allow the State to amend the information prior to trial.
The State next relies on State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992), where Grissom was charged with multiple crimes, including first-degree murder by premeditation and murder in the commission of a felony, either aggravated burglary or aggravated kidnapping. After the preliminary examination, the judge found there was no probable cause to bind Grissom over on the charge of felony murder committed during the perpetration of an aggravated kidnapping, but bound him over on the other charges. At the conclusion of the State’s presentation of evidence at trial, the State moved to amend the complaint to add a charge of felony murder in the perpetration of aggravated kidnapping. Over Grissom’s objection, the trial court granted the State’s motion.
Grissom was convicted of numerous crimes, including first-degree murder, aggravated burglary, robbery, and aggravated kidnapping. On appeal, Grissom claimed the amendment to include aggravated kidnapping caused him irreparable prejudice because it presented a “new theory” of felony murder upon which the jury could find him guilty. The State argued there was no error because it was not required to amend the complaint for the jury to be instructed on an alternative theory of felony murder. The Grissom court agreed with the State’s argument, noting that an amendment of the complaint to include felony murder based on aggravated kidnapping was not necessary. 251 Kan. at 926-27.
In reaching this conclusion, the Grissom court relied, in part, on State v. Barncord, 240 Kan. 35, 726 P.2d 1322 (1986). In Barncord, at the conclusion of the preliminary examination, the State moved to amend the complaint charging aggravated robbery and first-degree premeditated murder to include an additional charge of felony murder based upon the killing of a human being during the commission of the aggravated robbery. The judge bound the defendant over on the crimes charged in the complaint and took the motion to include an additional crime under advisement. Prior to trial, the judge granted the State’s motion to amend. Bamcord was convicted of first-degree felony murder and aggravated robbery. On appeal, Bamcord claimed that the amendments to the complaint were prejudicial. The Bamcord court, noting that it was not necessary to amend the complaint because no additional or different crime was charged, stated:
“Premeditated murder and felony murder are not separate and distinct offenses. Rather, a prosecution under the felony-murder rule changes the type of proof necessary to prove first-degree murder. [Citation omitted.] The State is relieved of the burden of proving premeditation and malice when the victim’s death is caused by the killer while he is committing another felony.” 240 Kan. at 38.
The Bamcord court also found that Bamcord, who had been bound over on premeditated murder, was aware that the judge had taken under advisement the State’s motion that he be bound over for felony murder. 240 Kan. at 37-38. Following the rationale of Bamcord, the Grissom court determined that, under the circumstances, Grissom was not prejudiced by the amendment. 251 Kan. at 927.
Next the State cites State v. Starr, 259 Kan. 713, 915 P.2d 72 (1996), where Starr was charged, bound over, and arraigned on premeditated murder or, in the alternative, felony murder, aggravated burglary, and aggravated assault. Prior to trial, the State dismissed the premeditated murder and aggravated burglary charges and proceeded to trial on felony murder and aggravated assault. At the close of the State’s evidence, the State moved to reinstate the charge of premeditated murder. Starr objected, arguing that he would be prejudiced due to surprise. The trial court allowed the amendment, finding no new crime had been charged. On appeal, Starr argued that the trial court did not have jurisdiction to try him on the charge of premeditated first-degree murder after the State had dismissed that charge prior to trial.
The Starr court noted that determining whether an amendment under K.S.A. 22-3201(e) should be permitted required a two-part analysis: (1) whether an additional or different crime was charged by the amendment and (2) whether the amendment prejudiced the substantial rights of the defendant. 259 Kan. at 718. The Starr court, citing Bamcord, observed that a prosecution under the felony-murder rule changed the proof necessary to prove first-degree murder by relieving the State of the burden of proving premeditation and malice. 259 Kan. at 719. The Starr court observed that the facts in Starr were similar to both Grissom and Bamcord. The court noted that, although the State could have originally proceeded on both the premeditated and felony-murder theories without electing between them, the State had elected to dismiss the charge of premeditated murder after the arraignment. Therefore, the question in Starr was what effect the dismissal of the charge after the arraignment had on the State’s ability to later proceed on both theories of first-degree murder. 259 Kan. at 719. .
The Starr court first addressed the defendant’s argument that once a charge is dismissed, the district court loses jurisdiction over that charge. The court determined that since the charge of first-degree felony murder had not been dismissed, the district court retained jurisdiction over the statutory crime of first-degree murder. 259 Kan. at 720.
The Starr court next addressed the defendant’s due process argument. Starr argued that by dismissing the premeditated murder charge, the State had indicated to the defense counsel that premeditation and intent were neither in dispute nor legally relevant and, therefore, he had no reason to prepare a defense against those issues. According to Starr, the amendment was a surprise, causing prejudice and denying him due process of law. In rejecting the due process argument, the Starr court noted that during oral argument, Starr’s counsel had asserted that questions he would normally have asked witnesses upon cross-examination were not asked because the charge of premeditated murder had been dismissed at the be ginning of trial. When asked by the court what questions would have been asked, counsel could furnish none. The Starr court stated:
“The entire defense to the charge of murder at trial was one of alibi. On cross-examination, the defendant, consistent with his defense, attacked the credibility of the State’s witnesses placing him at the scene. Under these circumstances, we perceive no prejudice flowing from the amendment at the close of the State’s case.
“Moreover, the State’s amendment to proceed on the theory of premeditated murder created no unusual surprise for the defendant. Originally, die defendant was charged under both theories, and only immediately prior to trial was the premeditated murder theoiy dismissed. Under the circumstances, the defendant should have been prepared to defend against both theories.
“Finally, the theoiy of felony murder reheves the State of the burden of proving premeditation and malice. [Citations omitted.] Instead, these elements are established through proof of the collateral felony. [Citation omitted.] Absent this theory, the State must prove premeditation. The amendment at the close of the State's case to include the alternate theory of first-degree premeditated murder had the effect of creating a greater burden on the State by requiring the State to prove intent and premeditation.” 259 Kan. at 720-21.
It is important to note it was only after there was a judicial determination of probable cause and after Starr was bound over and arraigned on the charge of premeditated first-degree murder that the State dismissed the charge. Thompkins, on the other hand, was not bound over on premeditated first-degree murder because at the preliminary examination the judge found the evidence insufficient.
These cases indicate that the trial judge can allow an amendment of a complaint or information to charge premeditated murder when no additional crime is charged and the defendant’s substantial rights are not prejudiced. None of the cases relied upon by the State deals with the consequences of a judge’s dismissal of a first-degree premeditated murder charge because of insufficient evidence at the preliminaiy examination and a subsequent refusal by the trial judge to allow the State to proceed on an amended complaint which included that charge.
II. Due Process
One of the substantial rights of an individual charged with a crime is the right to due process. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, 56, 652 P.2d 205 (1982).
Except so far as Congress may provide penal remedies for execution of federal powers, the bulk of authority to legislate on the subject of criminal justice is the responsibility of the individual states. U.S. Const., art. 1, § 8. The State has power to prescribe a method of procedure in prosecution for violation of its criminal laws, and it is immaterial whether its laws are the result of statute or whether they are decisions of Supreme Court as to what state law is. Andrews v. Hand, 190 Kan. 109, 115, 372 P.2d 559, cert. denied 371 U.S. 880 (1962).
III. The Code of Criminal Procedure
The provisions of the Kansas Code of Criminal Procedure (Code) govern proceedings in all criminal cases in the courts of the state of Kansas. K.S.A. 22-2102. The Code is intended to provide for the just determination of every criminal proceeding. Its provisions are construed to secure simplicity in procedure, fairness in administration, and ehmination of unjustifiable expense and delay. K.S.A. 22-2103. As related to criminal law and procedure, “substantive law” is that which declares what acts are crimes and prescribes punishment therefor, whereas “procedural law” is that which provides or regulates steps by which one who violates a criminal statute is punished. State v. Augustine, 197 Kan. 207, Syl. ¶ 1, 416 P.2d 281 (1966).
Thompkins admits that, under proper circumstances, the Code permits a complaint or information to be amended before a verdict or finding if no additional or different crime is charged and if his substantial rights are not prejudiced. Thompkins argues that because the State disregarded the statutory procedures, the premeditated murder conviction violated his procedural due process rights and he is entitled to a new trial on that charge.
We note that rules of practice and procedure contained in the Code are devised to promote the ends of justice, not to defeat them, and orderly rules of procedure should not require sacrifice of the rules of fundamental justice. See Hormel v. Helvering, 312 U.S. 552, 557, 85 L. Ed. 1037, 61 S. Ct. 719 (1941). A determination of whether Thompkins’ substantive and procedural due process rights were violated must first take into account the consequences of the State’s actions after the dismissal of the premeditated murder charge at the preliminary examination.
Although the Fifth Amendment to the United States Constitution provides that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, the states can commence a prosecution by filing a complaint and presenting sufficient evidence to a magistrate conducting a preliminary examination to bind the defendant for arraignment and trial. Even though there is no constitutional right to a preliminary examination, the United States Supreme Court has held that the Fourth Amendment, by incorporation of the Due Process Clause of the Fourteenth Amendment, requires the states to provide substantive and procedural due process rights to insure a fair and reliable determination of probable cause prior to detention and prosecution of an individual. See Gerstein v. Pugh, 420 U.S. 103, 112-13, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). Therefore, if the State elects not to proceed with a presentment to a grand jury, there are substantive and procedural due process requirements it must provide.
The Code requires that every person arrested on a warrant charging a felony shall have a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury. K.S.A. 22-2902(1). The right to a preliminary examination in Kansas is purely statutory. It is mandated neither by general constitutional privileges nor the requirement of constitutional due process. State v. Smith, 225 Kan. 796, Syl. ¶ 1, 594 P.2d 218 (1979). The United States Supreme Court discussed the constitutional requirements of a preliminary examination in Gerstein v. Pugh, 420 U.S. at 112-13 (citing Johnson v. United States, 333 U.S. 10, 13-14, 92 L. Ed. 436, 68 S. Ct. 367 [1948]). The Court stated: “To implement the Fourth Amendment’s protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible.” 420 U.S. at 112.
The Gerstein Court held that the Fourth Amendment, incorporated into the Fourteenth Amendment, requires that the states afford a defendant in a criminal case a timely judicial determination of probable cause as a prerequisite to detention. 420 U.S. at 126.
The preliminary examination is an important part of Kansas criminal procedure. It is protection for an accused and an instrument for justice. The preliminary examination affords the person arrested as a result of a complaint an opportunity to challenge the existence of probable cause for further detention or for requiring bail and apprises the accused about the nature of the crime charged and the sort of evidence he or she will be required to meet when subjected to final prosecution. State v. Boone, 218 Kan. 482, 485, 543 P.2d 945 (1975), cert. denied 425 U.S. 915 (1976). The principal purpose of a preliminary examination is the determination of whether it appears that a crime has been committed and probable cause to believe the defendant committed the crime. To bind the accused over for arraignment and trial, the State need not establish guilt beyond a reasonable doubt. State v. Jones, 233 Kan. 170, Syl. ¶ 2, 660 P.2d 965 (1983).
At the close of a preliminary examination, the magistrate’s choices are to bind the defendant over or to enter an order of discharge. State v. Leslie, 237 Kan. 318, 319, 699 P.2d 510 (1985). The examining magistrate has no power to acquit but only the power to discharge from custody. Such a discharge is not a bar to another preliminary examination. State v. Turner, 223 Kan. 707, 709, 576 P.2d 644 (1978). Where the evidence is insufficient to show that it appears that a felony has been committed and that the defendant committed it, the magistrate must discharge the defendant. State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985). If the evidence is sufficient, the defendant must be bound over for arraignment. K.S.A. 22-2905(1) requires the prosecutor to file an information charging only the crime or crimes for which the defendant is bound over prior to the arraignment.
When the examining magistrate fails to bind the defendant over to the district court for trial on a charge which is warranted by the evidence, one of the State’s remedies is to dismiss all charges and file another complaint or file an appeal pursuant to K.S.A. 22-3602. See Turner, 223 Kan. at 709. Here, the State acknowledged that it was aware that it could appeal the dismissal of the complaint pursuant to K.S.A. 22-3602(b)(l), which provides that appeals to this court may be taken by the prosecution from cases before a district judge as a matter of right from an order dismissing a complaint, information, or indictment. The State chose neither to appeal the judge’s discharge of the claim of premeditated murder nor to dismiss the remaining charges and file another complaint. Therefore, Thompkins was bound over and arraigned on the charges which the judge determined were sufficiently supported by the evidence. These charges did not include the charge of premeditated murder.
Here, following the dismissal of the charge of premeditated murder at the preliminary examination, the State did not (1) dismiss the complaint, file a new complaint, and present evidence at a subsequent preliminary examination; (2) follow the statutory procedure to appeal the judge’s dismissal of the charge; or (3) file an information stating the crimes for which the defendant was bound over. Instead, after the defendant had been arraigned without a proper information, the State chose to file an amended information which included the premeditated murder charge.
The existence of a complaint, information, or indictment filed against a defendant is a fundamental prerequisite to an arraignment. State v. Smith, 247 Kan. 455, Syl. ¶ 4, 799 P.2d 497 (1990). The arraignment in a criminal proceeding is the formal act of calling the defendant before a court having jurisdiction to impose sentence for the offense charged and informing the defendant of the offense charged by reading the complaint, information, or indictment, or stating to defendant the substance of the charge, and asking defendant whether he or she is guilty or not guilty or to otherwise plead as permissible by law. 247 Kan. 455, Syl. ¶ 3.
Prior to trial, the judge denied the State’s request to proceed under the amended information. It was only after the State had presented its evidence to the jury that the trial judge agreed to instruct the jury on premeditated murder. At that point in the proceedings, ThompMns had lost his right under K.S.A. 22-3208 to challenge any defect in the proceedings resulting from his discharge on the charge of premeditated murder after the preliminary examination.
Under these circumstances, ThompMns’ substantial substantive and procedural due process rights were prejudiced; therefore, instructing the jury on premeditated murder was improper. We are required to set aside ThompMns’ conviction for premeditated murder and remand the case to the district court for a new trial on the premeditated first-degree murder charge. Because we have ordered a new trial on the premeditated murder charge, we will not consider the other issues raised relating to this charge.
IV. Post-Arrest Silence
During the State’s direct examination of a police officer, the officer testified that he was assigned to interview ThompMns. He stated that he gave ThompMns the Miranda warnings. Then the officer was asked, “Did Mr. ThompMns make any statement to you at that time?” The officer replied, “A couple. I advised him of his rights and he told me he had nothing to say at that point.” Counsel immediately objected and moved for a mistrial.
After reviewing the record, we find that the State improperly introduced evidence that the defendant had invoked his right to silence. Unless a different factual situation exists in the next trial, the fact that the defendant invoked his right.to remain silent should not be admitted into evidence.
V. Evidence of Probation
For his final issue, ThompMns contends the trial court erred in allowing into evidence the fact that he was on probation when the crime was committed and that he was required to report to his probation officer on a regular basis. Prior to trial, the judge ruled that evidence of ThompMns’ prior record would not be admitted into evidence unless the defendant “opened the door.” At trial, ThompMns testified that his purpose in going to Donnelly College on the day of the murder was to tell Frances that he was leaving town for Louisiana that day and to discuss plans for their daughter and the sale of their house. He stated he had been planning to leave Kansas for 3 days.
At trial, out of the presence of the jury, the prosecutor stated she intended to call Thompkins’ probation officer, Jack Phan, as a rebuttal witness. She indicated to the judge that the day before the murder (October 21), Thompkins was released from the Wyandotte County jail, where he had been held on a probation violation for failure to make restitution payments and failure to take a drug screening test. At a prior hearing in district court in the presence of his probation officer, Thompkins had stated he would make a $100 payment by borrowing money from various people and applying for disability. On the basis of this testimony, the district judge released Thompkins from jail. Thompkins received a 30-day extension to make the payment and was ordered not to leave the state without permission.
Defense counsel objected to admission of the testimony, arguing the State was attempting to backdoor Thompkins’ prior criminal record into evidence. The trial court agreed to limit the testimony and instructed the probation officer not to reveal to the jury that the purpose of the hearing was to determine if Thompldns’ probation should be revoked. The probation officer would be allowed to testify only as to the conditions of Thompkins’ probation. The probation officer testified that the conditions of Thompkins’ probation were that Thompkins make a $100 payment within 30 days, report in person to him at least twice per month before the next hearing, and not leave the state without permission. The probation officer testified that Thompkins had not advised him that Thompkins planned to leave the state.
Thompkins contends this evidence was of limited probative value and highly prejudicial because it degraded him and apprised the jury of other crimes he had committed without fulfilling the requirements of K.S.A. 60-455. Thompkins argues the admission of the evidence was error and violated his right to a presumption of innocence.
In support, Thompkins cites cases where the court has held the defendant did not receive a fair trial due to insinuations that he had appeared in a succession of police lineups, State v. Taylor, 198 Kan. 290, 424 P.2d 612 (1967), or because he was required to appear in court in prison garb, State v. Hall, 220 Kan. 712, 556 P.2d 413 (1976). Thompkins also relies upon cases dealing with the prosecution’s improper use of K.S.A. 60-455 other crimes evidence in cross-examination of a defendant, such as State v. Harris, 215 Kan. 961, 529 P.2d 101 (1974), and State v. Macomber, 241 Kan. 154, 734 P.2d 1148 (1987), cert. denied 493 U.S. 842 (1988).
Thompkins, in relying on the cited cases, fails to note that the evidence here was admitted as rebuttal evidence.
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal [evidence] rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.” State v. Prouse, 244 Kan. 292, Syl. ¶ 2, 767 P.2d 1308 (1989); State v. Weigel, 228 Kan. 194, Syl. ¶ 9, 612 P.2d 636 (1980).
The court addressed a similar issue in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), where the defendant appealed his convictions of first-degree murder and two counts of theft. Hall’s former wife had testified that she and Hall had driven their truck to visit friends in April 1984. Hall contended that the trial court erred in allowing the State to elicit rebuttal testimony that the April visit was not possible because in March 1984 , the truck had been confiscated as stolen by Hall.
The court rejected Hall’s contention that the admission of the rebuttal evidence was improper because it violated the requirement for admission of K.S.A. 60-455 (other crimes) evidence stated in State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), overruled on other grounds State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976). The Hall court noted Bly was a case interpreting K.S.A. 60-455 but, in Hall’s case, the testimony was not introduced under K.S.A. 60-455. The Hall court found that the defendant had opened the door to the testimony regarding confiscation of the stolen truck by attempting to impeach his former wife’s testimony that they had visited friends on the same trip during which the victim was killed. Under the circumstances, the State’s rebuttal evidence which contradicted Hall’s version was proper because “ ‘[w]hen the defendant opens a subject on direct or cross-examination, the State may develop and explore various phases of that subject.’ ” 246 Kan. at 743 (quoting State v. Chatmon, 234 Kan. 197, 203, 671 P.2d 531 [1983]).
A similar issue regarding rebuttal testimony was addressed in State v. Burnett, 221 Kan. 40, 558 P.2d 1087 (1976). In Burnett, the defendant appealed his convictions of first-degree murder and aggravated robbery. He argued the trial court erred in allowing rebuttal witnesses to testify to prior crimes he committed in Oklahoma. The defendant contended this was improper rebuttal testimony in violation of K.S.A. 60-421 (limitations on evidence of conviction of crime as affecting credibility) and 60-455.
The Burnett court disagreed, noting that the evidence was introduced solely for rebuttal purposes. 221 Kan. at 43. The court, in distinguishing evidence of other crimes and civil wrongs, stated:
“Rebuttal evidence is that which is presented to deny some fact an adverse party has attempted to prove or has placed in dispute. [Citations omitted.] . . . The use and extent of rebuttal rests in the sound discretion of the trial court. [Citations omitted.] The ruling of the trial court will not be ground for reversal unless it appears discretion has been abused to appellant’s prejudice. [Citations omitted.]”
The court continued:
“When a defendant takes the stand, he takes his character and integrity with him and cannot complain because he is subjected to the same inquiries and tests as other witnesses. [Citations omitted.] This includes the right to cross-examine a defendant within the limits of K.S.A. 60-421. [Citation omitted.] Furthermore, cross-examination of an accused in a criminal case is subject to the same rules which apply to any other witnesses. [Citation omitted.] For this reason, a defendant waives immunity on matters to which he testifies and may be cross-examined further on those subjects. . . .
‘While a defendant has a privilege to testify or refuse to do so in his own defense, and is protected by K.S.A. 60-421 and 60-455, those privileges and protections cannot be construed as a license to commit perjury with impunity. [Citations omitted.]” 221 Kan. at 43-44.
Here, Thompkins stated on direct examination that his reason for visiting Frances at Donnelly College was to tell her he was leaving town and moving to Louisiana. Having opened the door to this topic (leaving town), it was proper rebuttal for the State to call the probation officer to testify that there was a court order preventing Thompkins from leaving town without permission. Thompkins’ analysis is flawed because the testimony was admitted as rebuttal evidence and not as K.S.A. 60-455 evidence.
Thompkins’ conviction for burglary is affirmed. Thompkins’ conviction for premeditated first-degree murder is reversed, and the case is remanded for further proceedings on the charge of premeditated first-degree murder.
Affirmed in part, reversed in part, and remanded.
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The opinion of the court was delivered by
Six, J:
This is a summary judgment medical malpractice personal injuiy case. The primary focus is on the absence of expert testimony on causation and damages and the application of the common knowledge exception to the expert testimony requirement. Gerald W. Hare appeals from judgments granted to defendants Kristopher K. Wendler, M.D. and The Kansas Psychiatric Institutes, Inc., d/b/a “The Kansas Institute” (TKI). Hare’s petition alleged that Wendler, a psychiatrist, had engaged in sexual relations with Hare, his patient at TKI, a psychiatric hospital. The district court found that Hare had offered no expert testimony on causation or damages and that such expert testimony was required. Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on our motion).
We consider two questions in affirming summary judgment: was the district court correct in ruling (1) expert testimony on causation or damages was needed to move this case beyond summary judgment, and (2) the summary judgment motions were ripe for decision, despite an unresolved motion to compel discovery?
We note that the district court’s requirement that Hare present expert testimony on damages is not established in our case law. Kansas law does'not require that a plaintiff must present expert testimony on a claim for damages. However, Hare’s failure to present expert evidence on causation is dispositive.
FACTS
Hare, an adult male, was admitted to TKI in 1991 for psychiatric care and treatment. He alleged that during his stay at TKI, Dr. Wendler, without his consent, touched Hare’s genital area, forced him to perform oral sex, and sodomized him. Also, when Hare was readmitted in 1993, Hare alleged that Dr. Wendler negligently terminated Hare’s psychiatric treatment. The petition asserted (1) negligent treatment by Dr. Wendler, (2) vicarious negligence against TKI, and (3) TKI’s negligent retention and supervision of Dr. Wendler.
Dr. Wendler denied negligence and sexual contact with Hare. TKI denied negligence and also contended that Dr. Wendler was an independent contractor. The district court entered a discovery order requiring Hare to designate his expert witnesses, including the experts’ opinions. The order also required discovery to be completed on or before February 28, 1996. .
Opposing counsel was notified by letter dated October 3,1995, that Hare had designated Dr. William Logan, M.D., as his expert witness. The letter said that it might be supplemented in the future and generally described the opinions that Dr. Logan was to render on the negligent treatment. “Dr. Logan will also testify that the aforementioned misdiagnosis and failure to treat caused or contributed to cause longstanding emotional injury for Mr. Hare.”
Defendants’ counsel deposed Dr. Logan on November 27,1995. Dr. Logan said that he had been asked to look at this case only from the standard of care standpoint. Dr. Logan had never examined Hare. He said that he would prefer not to discuss causation or damage issues without examining Hare. Later in his deposition, Dr. Logan was asked the following question:
“Q. I noticed that Mr. Johannsen’s letter to the defense attorneys in this case [the October 3, 1995, letter] indicates in his final paragraph that you’ll be addressing issues of aggravation of condition, permanency of injury and future costs of medical care, but I take it, really, since you don’t have the prior or subsequent medical records and because you have not interviewed Mr. Hare, you’re not going to be addressing any of those topics?”
He answered:
“A. Just don’t have the tools to form the basis of opinion on those areas. All you can say generally is —
“Q. You know what, you’ve answered my question.
“A. Okay.”
Dr. Logan did opine that Dr. Wendler’s engaging in any kind of sexual contact with Hare would have been a deviation from the standard of care. Dr. Logan also believed that to a certain extent Dr. Wendler’s handling of the termination issue during Hare’s 1993 hospitalization fell beneath the standard of care. Dr. Logan was once again asked during his deposition if he had any other opinions, and he stated he did not. The following exchange between Dr. Logan and counsel for Dr. Wendler then took place:
“Q. And you understand that this was the date upon which we were to be given the opportunity to depose you in connection with the opinions you hold in this case pursuant to the Court’s direction; correct?
“A. Right. And it’s also my general understanding if there is other work, there would also be followed — or other opinions, you will be so notified.
“Q. I don’t know about that. Today is the day I get to depose you and today is the day you get to express the opinions. This is the Court’s designated deadline.
“A. As of this day, this is what I have done and this is what my opinions are.”
On March 4, 1996, Hare filed a motion to amend pleadings, seeking to add a claim for punitive damages. TKI, in opposing the motion, attached a privilege log to its response brief. The privilege log listed documents concerning complaints received against Dr. Wendler during 1992 and 1993 involving other patients, Hare’s February 1993 complaint, and internal investigations. Hare filed a motion to compel discovery, based primarily on TKI’s assertion of various privileges against disclosure.
The pretrial order, filed April 8,1996, referred to the deposition of Dr. Logan as being completed. Contemplated discovery listed the depositions of defendants’ expert witnesses. A jury trial was set for June 17, 1996.
Dr. Wendler and TKI filed motions for summary judgment on April 10,1996. Both defendants argued that Hare’s petition should be dismissed for failure to offer any expert opinion testimony as to damages and causation (TKI also asserted additional grounds).
The journal entry of the May 2,1996, telephone conference with the court, which set various motions for hearing, provided in part:
“Further, the Court finds that the discovery disputes that are still outstanding do not affect the issues relating to plaintiff’s expert nor the issues relating to Dr. Wendler’s status as an independent contractor. The Court also finds that plaintiff s counsel agreed that Dr. Wendler was an independent contractor for TKI and that the parties further agreed that discovery regarding plaintiff’s expert has closed.’’ (Emphasis added.)
Hare’s response to the motions for summary judgment included his affidavit, which said that he was seen by Dr. Logan on April 22, 1996. The response also included a letter dated May 7, 1996, from Hare’s counsel supplementing counsel’s October 3,1995, letter. The May 7, 1996, letter added that Dr. Logan would testify as to additional opinions, which were listed. However, the response included no additional statements from Dr. Logan himself.
The district court granted defendants’ motions for summary judgment and decided that the other pending motions were moot. In the TKI summary judgment journal entry, the district court found “that the causation of damages alleged by plaintiff, such as increased emotional and psychiatric difficulty, would not be apparent to a layman under the factual circumstances of this case. Therefore, plaintiff is required to have expert testimony to prove the essential elements of causation and damages.” The district court concluded “that there is an absence of essential elements of plaintiff’s case and TKI is entitled to summary judgment for the failure of plaintiff to come forward with anything of evidentiary value establishing the essential elements of causation and damages.” The district court decided that Hare’s counsel’s October 3, 1995, letter, even if construed as an interrogatory response, had no evidentiary or probative value. The journal entry awarding summary judgment to Dr. Wendler contained similar findings and conclusions.
A motion for reconsideration was filed, which included another affidavit from Hare. However, nothing new from Dr. Logan was included. The district court denied the motion to reconsider, and Hare's appeal leads to our discussion.
DISCUSSION
The blunt finality of summary judgment requires that we initially record Hare’s background, which sets the stage for our analysis of this case.
Hare’s Background
In Hare’s deposition, he said that he suffered from multiple personality disorder. He has as many as seven alter personalities. He described his childhood sexual abuse from his father beginning at age 5, and from his uncle beginning at age 9 or 10, including oral sex and anal intercourse. His father and uncle would tell him such things as, “Don’t tell anybody, I’ll kill you,” or, “No one will believe you, you are just a kid.” Hare stopped the sexual contact with his father at age 15 when he beat his father with a baseball bat. Hare also had a sexual relationship with a male cousin during junior high. A postman sexually abused Hare when Hare was in grade school. Hare had sexual relationships with a couple of male students while in high school. He spent a year and a half in the Marines. During that time (age 18), he became addicted to heroin and also moved into male prostitution. He would be picked up three or four times a night. Sometimes he engaged multiple partners. Hare used marijuana almost every day as a senior in high school. By the time he was discharged from the Marines, he was an alcoholic and a drug addict.
Hare’s Hospitalization at TKI
Hare described his 1991 hospitalization at TKI for treatment of depression. He was diagnosed with multiple personality disorder, post-traumatic stress disorder, major depression, and psychogenic amnesia. Hare did not recall any sexual contact with Dr. Wendler during his 1991 TKI hospitalization until 1993, when he was again hospitalized there. However, upon seeing Dr. Wendler in 1993, Hare recalled Dr. Wendler’s 1991 sexual activities. According to Hare’s recollection, Dr. Wendler, in 1991, groped through Hare’s jeans and said, ‘Well have to try this some day.” As the sessions continued, Hare alleged, Dr. Wendler would hypnotize Hare and Hare would perform oral sex on him, or Dr. Wendler would perform anal sex on Hare; anal sex would occur during the morning visits and oral sex took place during the afternoon. According to Hare, after the sexual encounters, Dr. Wendler would say, “You can’t tell anyone, you know, because you’re crazy,” or, “If you say anything, I’ll kill you.” Dr. Wendler would tape over the peephole in the therapy room door or place two chairs in front of the door. He kept the tape inside the sleeve of his jacket.
During his 1993 hospitalization at TKI, Hare did not have any sexual encounters with Dr. Wendler. Dr. Wendler went on administrative leave because he was undergoing an investigation concerning allegations of sexual misconduct with female patients. Hare was in the TKI smoking room when he heard two female patients say that Dr. Wendler was in trouble for something. Then, Hare saw Dr. Wendler in the hall and began to recall the 1991 sexual encounters.
Summary Judgment
Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 60-256(c). Our standard of review is de novo. See Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, Syl. ¶ 2, 863 P.2d 355 (1992). The essential facts here are documented in the parties’ summary judgment submissions. Our standard in reviewing summary judgment is well established. See, e.g., Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
Causation
Hare advances a claim of medical malpractice, requiring the same elements of proof as in any negligence action. Sharples v. Roberts, 249 Kan. 286, 294, 816 P.2d 390 (1991).
We have described the plaintiff’s duty to show causation in medical malpractice cases, stating there must be a causal connection between the negligent act and the injury or that the act caused or contributed to the injury. Sharples, 249 Kan. at 295. Expert testimony is ordinarily required to show that the doctor breached the standard of care. Heany v. Nibbelink, 23 Kan. App. 2d 583, 586-87, 932 P.2d 1046 (1997).
We said in Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988):
“Negligence is never presumed, and may not be inferred merely from a lack of success or an adverse result from treatment. [Citation omitted.] The plaintiff in a medical malpractice case bears the burden of showing not only the doctor’s negligence, but that the negligence caused the injury. [Citation omitted.] Except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience, expert testimony is required in medical malpractice cases to establish the accepted standard of care and to prove causation. [Citations omitted.]”
The parents and child in Bacon sued the hospital, the mother’s physician, and the pediatrician, alleging that negligence after delivery caused the child’s cerebral palsy. We affirmed summary judgment in favor of defendants, holding that plaintiffs presented no expert evidence that the hospital, the mother’s physician, or the pediatrician in the hour following delivery caused the child’s cerebral palsy.
In Sharpies, the patient claimed that his physician’s failure to diagnose the existence of a large kidney stone, order the appropriate tests, and refer him soon enough to a urologist, caused a kidney loss. We affirmed summary judgment for the physician and agreed with the district court’s analysis of the testimony of Dr. Simon, the plaintiff’s expert. Although Dr. Simon thought that defendant physician had departed from the acceptable standard of care, he could not say that the departure caused or contributed to the injury. Dr. Simon’s testimony fell short of the degree of medical probability or certainty required to support the necessaiy element of causation.
Even when there is no factual dispute about what the treating physician did or failed to do, questions of causation in medical malpractice cases are often complex. For example, in Webb v. Lungstrum, 223 Kan. 487, 491-92, 575 P.2d 22 (1978), the causation issue (although we did not address it) involved whether loss of sensation in plaintiff’s left hand was caused by the original injury, presence of a metal object in the median nerve, or the operation. Plaintiff’s expert could not address the causation question with “reasonable certainty.” 223 Kan. at 491-92. See generally An-not, Necessity of Expert Evidence to Support an Action for Malpractice Against a Physician or Surgeon, 81 A.L.R.2d 597.
Hare argues that the district court erred in concluding that there was no expert evidence on causation. Hare claims Dr. Logan said only that he could not offer any opinion until he examined Hare. Hare references his attorney’s two letters to opposing counsel outlining the causation opinions that Dr. Logan would offer. However, Hare offers no additional statements from Dr. Logan.
Despite Hare’s attorney’s letters about Dr. Logan’s opinions, at the time Dr. Logan was deposed and was asked for his opinions, he offered none on causation. He said he would need to examine Hare and additional medical records. He did not indicate during his deposition that he had been, or would be, asked to examine Hare. Under the terms of the discovery order, Hare had the burden to disclose his expert’s opinions to opposing counsel. See K.S.A. 60-226(b)(4)(A)(i).
Hare argues that defense counsel, though aware Dr. Logan was going to testify on causation, never followed up to conclude Dr. Logan’s deposition. Hare misreads what happened. Defense counsel asked Dr. Logan for his opinions, and Dr. Logan made clear that his only opinion concerned breach of the standard of care.
Hare contends that counsel’s October 3,1995, and May 7,1996, letters should be treated as answers to interrogatories under K.S.A. 60-226(b)(4)(A)(i). However, as the district court concluded: “Even if this letter was construed as an interrogatory response, it could never be offered and received in evidence as relevant to the question of causation.” The letters are hearsay, at best, and are signed by Hare’s counsel. They are neither signed by a party nor signed under oath. The letters do not satisfy the requirements of K.S.A. 60-233(a) (written interrogatories).
The Common Knowledge Exception
Hare advances the common knowledge exception as his trump card on summary judgment. We have recognized the common knowledge exception in medical malpractice cases.
“There is a common knowledge exception to the rule requiring expert medical testimony in malpractice cases. This common knowledge exception applies if what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind generally. [Citations omitted.]” Webb, 223 Kan. at 490.
Webb focused on an orthopedic surgeon’s failure to call in advance for an x-ray in treating a tendon and nerve injury in the forearm. The defendant surgeon failed to discover a small metal fragment. We held the absent x-ray was not so obvious that the omission fell within the common knowledge exception. 223 Kan. at 491.
The common knowledge exception was found not applicable and expert medical evidence was required in the following cases: Bacon, 243 Kan. 303; Webb, 223 Kan. 487; Collins v. Meeker, 198 Kan. 390, 424 P.2d 488 (1967); Heany, 23 Kan. App. 2d 583; St. Francis Regional Med. Center, Inc. v. Hale, 12 Kan. App. 2d 614, 752 P.2d 129 (1988); Crooks v. Greene, 12 Kan. App. 2d 62, 736 P.2d 78 (1987); and Crowley v. O’Neil, 4 Kan. App. 2d 491, 609 P.2d 198, rev. denied 228 Kan. 806 (1980). The exception was applied in McKnight v. St. Francis Hosp. & School of Nursing, 224 Kan. 632, 585 P.2d 984 (1978); Hiatt v. Groce, 215 Kan. 14, 523 P.2d 320 (1974); Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 510 P.2d 190 (1973); Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P.2d 472 (1957); and Bernsden v. Johnson, 174 Kan. 230, 255 P.2d 1033 (1953).
Hare argues that under the common knowledge exception, expert testimony was not necessary because a psychiatrist having sexual relations with a patient is obviously below the standard of reasonable care. However, the standard of care is not at issue here.
The causation question is complex, as it is in many medical malpractice cases. Hare did not report Dr. Wendler’s alleged 1991 sexual contact until his 1993 hospitalization. Hare admitted to a promiscuous lifestyle. His past included prostitution and drug and alcohol abuse, as well as sexual abuse. He was diagnosed with many mental disorders at the time of his 1991 hospitalization at TKI. Hare’s preexisting mental problems are linked to the causation issue.
In arguing that the common knowledge exception should apply here, Hare cites Richard H. v. Larry D., 198 Cal. App. 3d 591, 243 Cal. Rptr. 807 (1988), and Blackowiak v. Kemp, 546 N.W.2d 1 (Minn. 1996). Both cases are distinguishable. RichardH. involved a demurrer to a malpractice complaint, and, consequently only addressed whether a cause of action was pleaded. It did not address questions on the quality of causation evidence needed to avoid summary judgment. Blackowiak did not involve a malpractice action or the question of causation evidence.
Hare compares his claim to the statutory definition of aggravated criminal sodomy in K.S.A. 21-3506. He asserts that because Dr. Wendler’s alleged conduct fits the statutory definition, we should assume that injury from such criminal conduct is sufficient to overcome summary judgment. K.S.A. 21-3506 does not reference any presumption of injury.
Hare contends that difficulty in determining damages should not entitle Dr. Wendler to summary judgment, citing Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, Syl. ¶ 5, 856 P.2d 906 (1993) (“The inability to calculate damages with absolute exactness does not render them too uncertain to preclude their award.”). In Cott, two bar customers sustained severe internal injuries after ingesting cocktails that contained a highly toxic dishwashing liquid. Causation was not an issue. The damages in Cott were obviously caused by ingestion of the toxic liquid. The uncertainty concerned how to calculate future medical expenses. Here, the question is what, if any, damages did Hare suffer because of Dr. Wendler’s alleged conduct? Concern about calculation of damages is premature.
Hare relies on the Restatement (Second) of Torts § 433B(2) (1965), which addresses the apportionment of harm and the burden of proof when tortious conduct of two or more actors combine. He reasons that Dr. Wendler and TKI bear the burden of proof to establish other causes for Hare’s mental problems.
Hare’s § 433(B)(2) argument misses the issue, i.e., the question of whether Hare’s claims fail because he has not presented any expert evidence on causation. The issue of burden of proof is irrelevant to that threshold question.
When the motions for summary judgment were filed, Hare had the burden to provide the necessary expert evidence. He must actively come forward with something of evidentiary value to establish a disputed material fact. Evidentiary value means a document or testimony must be probative of Hare’s position on a material issue of fact. See Kastner v. Blue Cross and Blue Shield of Kansas, Inc., 21 Kan. App. 2d 16, Syl. ¶ 6, 894 P.2d 909, rev. denied 257 Kan. 1092 (1995).
The Court of Appeals in Crooks, 12 Kan. App. 2d 62, granted the medical malpractice defendant summary judgment because the alcoholic patient, who allegedly sustained brain damage from negligently prescribed Valium, failed to present expert causation evidence. The common knowledge exception was found not applicable because the patient’s preexisting condition of phlebitis could have contributed to the alleged damage. Hare’s conditions existing before Dr. Wendler’s treatment were many and may have caused his alleged damages.
Hare produced only Dr. Logan’s deposition testimony. Even after Dr. Wendler and TKI filed motions for summary judgment, nothing more from Dr. Logan was filed. Hare did not seek the benefit of K.S.A. 60-256(f). His only response was the May 7,1996, letter of counsel and Hare’s affidavit, neither qualifying as expert opinion evidence.
Hare’s preexisting conditions complicate the question of whether his later hospitalizations for mental problems were attributable to Dr. Wendler’s alleged sexual misconduct in 1991. Despite the obvious impropriety of Dr. Wendler’s alleged sexual misconduct and breach of the standard of care, the causation issue is too complex to fit within the common knowledge exception and is beyond the capability of a lay person to decide.
Pending Discovery
We now consider the remaining secondary issue. Hare points out that at the time the summary judgment motions were granted, pretrial discovery had not been completed. Hare’s motion to compel discovery against TKI was pending.
TKI contends that none of the remaining discovery sought by Hare would affect his ability to present expert evidence on causation. Also, Dr. Logan’s ability to offer opinions on causation was strictly within Hare’s control. We agree.
Hare’s fundamental problem is his lack of expert medical causation evidence. Even assuming TKI produced documents showing complaints against Dr. Wendler before Hare’s second hospitalization at TKI, such discovery would not cure Hare’s failure to obtain any expert opinion on causation. The discovery Hare sought to compel against TKI came late in the game. The district court correctly concluded that this discovery was irrelevant to the problem of Hare’s lack of expert evidence on causation and the question of whether the common knowledge exception should apply.
Affirmed.
Lockett and Davts, JJ., not participating.
Gary W. Rulon, J., and Richard W. Wahl, Senior Judge, assigned.
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The opinion of the court was delivered by
McFarland, C.J.:
In this consolidated appeal, each defendant appeals from the denial of identical (except for names and dates) motions to correct illegal sentences. Each defendant contends: (1) The notice to seek imposition of the hard 40 sentence was untimely; and (2) the district court erred in not appointing counsel and holding a hearing on his motion.
BACKGROUND FACTS
Shane A. Duke was convicted of first-degree murder and other felonies arising from the January 19, 1993, slaying of his landlord, Charles Pettigrew. He received a hard 40 sentence for the murder. His convictions and sentences were affirmed on direct appeal. State v. Duke, 256 Kan. 703, 887 P.2d 110 (1994). Approximately 18 months after his direct appeal was decided, Duke filed a pro se motion to correct an illegal sentence on the previously unasserted claim that the State’s notice of intention to seek a hard 40 sentence was untimely.
Brent L. Alford was convicted of first-degree murder and other felonies arising from the March 5, 1993, slaying of his girlfriend, Kimberly Jackson. He received a hard 40 sentence for the murder. His convictions and sentences were affirmed on direct appeal. State v. Alford, 257 Kan. 830, 896 P.2d 1059 (1995). Approximately 1 year after his direct appeal was decided, Alford filed a pro se motion to correct an illegal sentence on the previously unasserted claim that the State’s notice of intention to seek a hard 40 sentence was untimely.
Both motions were preliminarily examined and denied (to be discussed in greater depth later in the opinion).
APPOINTMENT OF COUNSEL AND HEARING REQUIREMENTS
Both defendants contend that K.S.A. 22-3504(1) bars summary disposition of motions to correct an illegal sentence. The statute provides:
“The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.”
We have defined an illegal sentence as a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. Carmichael v. State, 255 Kan. 10, 16, 872 P.2d 240 (1994); State v. Ruff, 252 Kan. 625, 628, 847 P.2d 1258 (1993); see State v. Scherzer, 254 Kan. 926, Syl. ¶ 1, 869 P.2d 729 (1994).
In State v. Nunn, 247 Kan. 576, 802 P.2d 547 (1990), a claim was made that the district court was required to appoint counsel for defendant on a motion for new trial filed later than 10 days after trial. The motion was based upon alleged newly discovered evidence, a ground K.S.A. 22-3501(1) affords a 2-year filingperiod.
We rejected this argument, holding:
“While it would simplify matters for all courts and litigants if we were to adopt a bright-line rule that counsel be appointed for all post-trial motions, such a rule would not appear to be feasible or justified. Obviously, counsel should be appointed in cases where the motion raises substantial questions of law or triable issues of fact requiring an evidentiary hearing, legal arguments, and/or briefs of the parties. It appears just as obvious that if the motion, whether or not it is the defendant’s first based upon newly discovered evidence, fails to state any substantial issues of law or fact, or states sufficient facts to allow a determination based upon the motion itself, then appointment of counsel and the holding of a hearing would be unwarranted. We adhere to our prior rulings that the determination of whether to appoint counsel and hold a hearing on post-trial motions not filed ‘within 10 days after the verdict or finding of guilty, or within such further time as the court may fix during the 10-day period,’ is one best left to the sound discretion of the trial court considering all the circumstances of the particular case. If the trial court correctly determines from the pleadings and record that the motion raises no substantial questions of law or fact, then the refusal to appoint counsel and hold a hearing does not constitute an abuse of discretion.” 247 Kan. at 584-85.
The language authorizing preliminary judicial examination to determine whether or not substantial questions of law or fact are raised appears in K.S.A. 22-4506, which provides in pertinent part:
“(a) Whenever any person who is in custody under a sentence of imprisonment upon conviction of a felony files a petition for writ of habeas corpus or a motion attacking sentence under K.S.A. 60-1507 and files with such petition or motion such person’s affidavit stating that the petition or motion is filed in good faith and that such person is financially unable to pay the costs of such action and to employ counsel therefor, the court shall make a preliminary examination of the petition or motion and the supporting papers.
“(b) If the court finds that the petition or motion presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person as provided in K.S.A. 22-4504 and amendments thereto, the court shall appoint counsel . . . .”
Our decisions have been quite uniform in upholding the propriety of such preliminary examinations on all post-trial motions filed later than 10 days after trial. There is no indication that a motion to correct an illegal sentence was intended by the legislature to be treated differently from a K.S.A. 60-1507 attack upon a sentence. Logic does not require a different treatment. What purpose is served if, unlike another post-trial motion, the filing of a bare-bones conclusory motion to correct an allegedly illegal sentence triggers a full-blown hearing with defense counsel and the presence of the defendant? We believe the keywords in K.S.A. 22-3504(1) relative to the issue before us are “any proceeding.” The district court should make the preliminary examination as to whether substantial questions of law or fact are raised. If the findings are in the negative, the court should summarily deny the motion. This is not a “proceeding” within the language of the statute. If the findings are in the affirmative, then the matters can only be resolved in a “proceeding” as set forth in the statute.
The motions herein were filed long after the sentences were imposed and direct appeals determined. The issues would not arise if the motion is filed so close in time to the imposition of sentence that it is a continuation of the representation afforded at the sentencing.
In summary, we hold K.S.A. 22-3504(1) does not eliminate a district court’s duty to preliminarily examine a motion to correct an allegedly illegal sentence to determine if substantial issues of law or fact are raised. If no such issues are found to have been raised, the motion may be summarily dismissed.
NOTICE OF INTENT TO REQUEST HARD 40 SENTENCE
K.S.A. 1992 Supp. 21-4624(1) (the statute in effect at the time of the commission of these offenses) provided:
“If a defendant is charged with murder in the first degree, the county or district attorney shall file written notice if such attorney intends, upon conviction or adjudication of guilt of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be required to serve a mandatory term of imprisonment of 40 years. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney at the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.”
The notice provisions of K.S.A. 1992 Supp. 21-4624 are mandatory, and failure of the State to comply with such provisions requires a sentence imposed thereunder to be vacated. See State v. Collier, 259 Kan. 346, Syl. ¶ 10, 913 P.2d 597 (1996); State v. Peckham, 255 Kan. 310, 315, 875 P.2d 257 (1994); State v. Johnson, 255 Kan. 140, Syl. ¶ 2, 871 P.2d 1246 (1994); State v. Deavers, 252 Kan. 149, Syl. ¶ 6, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993).
Notice can be file stamped later than the date of arraignment, provided the record shows that the State delivered notice to the judge with intent to file pursuant to K.S.A. 60-205(e). See State v. Copridge, 260 Kan. 19, 29, 918 P.2d 1247 (1996) (notice handed to judge, judge acknowledged receipt of “actual notice,” notice file stamped day after arraignment with no further notation; notice proper); State v. Harris, 259 Kan. 689, 708-10, 915 P.2d 758 (1996) (notice filed in afternoon after arraignment was concluded, contained no further notations; record showed State filed notice with court and with defendant simultaneously; notice proper); State v. Williams, 259 Kan. 432, 443-44, 913 P.2d 587, cert. denied 136 L. Ed. 2d 49 (1996) (State handed court notice at arraignment stating it was filing original document with the court; court stated it would file document with clerk’s office; notice file stamped 4 days later; notice proper).
The claims of both defendants are remarkably similar. Each argument is terminally flawed by the defendant’s confusion of the date of his first appearance with the date of his arraignment. The district courts’ respective findings in each case are grounded on this fact. The pertinent facts as to each defendant are as follows:
DUKE
February 1, 1993 First appearance
February 16, 1993 Preliminary hearing — arraignment. Hard 40 notice served on Duke and his counsel and filed with the judge (as shown by judge’s notation).
February 18, 1993 Hard 40 notice file stamped by clerk.
ALFORD
March 8, 1993 First appearance
April 2, 1993 Preliminary hearing — arraignment. Hard 40 notice served on Alford and his counsel. Copy file stamped by clerk.
The records herein clearly show compliance with the hard 40 notice requirements. We find no abuse of discretion in either appeal as to the district court’s findings that no substantial issues of law or fact had been raised in the respective motions. The judgments are affirmed.
Affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the State of Kansas in a criminal prosecution from an order discharging the defendant on one count of a three-count complaint.
The State filed a three-count complaint charging Nelson with aggravated battery in Count I, driving under the influence in Count II, and consumption of alcohol by a minor in Count III. At the close of the preliminary hearing, the trial court discharged Nelson on Count I (aggravated battery), and the State voluntarily dismissed Count II (DUI). Count III (consumption of alcohol by a minor) was never dismissed and remains pending in Saline County District Court.
Nelson claims that this unresolved count, pending in the trial court, deprives this court of jurisdiction to hear the State’s appeal regarding the trial court’s discharge of the defendant on Count I. In support of this argument, Nelson cites to State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983), and State v. Bickford, 234 Kan. 507, 672 P.2d 607 (1983).
Freeman provides:
“The question squarely before this court is whether the state can appeal from the dismissal of some counts of a multiple count complaint, information or indictment while other counts of the same charging instrument are still pending in the district court.
“To hold that K.S.A. 22-3602(b)(l) authorizes an appeal from the dismissal of some of the counts in a multiple-count information while the remaining counts are left pending and unresolved in the district court would result in untold delay and chaos in the trial and appellate courts. . . .
“We hold that there is no statutory authority for the State to appeal from the dismissal in a criminal case of some of the counts of a multiple-count complaint, information or indictment while the case remains pending before the district court on all or a portion of the remaining counts which have not been dismissed and which have not been finally resolved. This court lacks jurisdiction of the appeal.” 234 Kan. at 279-82.
Bickford provides in the syllabus:
“The right to appeal is statutoiy and, in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court. State v. Hermes, 229 Kan. 531, Syl. ¶ 1, 625 P.2d 1137 (1981).”
“An objection based on absence of jurisdiction of the subject matter must be considered and may be effectively raised at any time. Such an objection may be raised for the first time in the appellate court, even on the appellate court’s own motion. Micheaux v. Amalgamated Meatcutters & Butcher Workmen, 231 Kan. 791, 648 P.2d 722 (1982).”
“This court has no power to create an appellate procedure other than the appellate procedure contained in the statutes. Only the legislature has power to create an additional appellate procedure for partial dismissal of a complaint, information or indictment; this it has not done.” 234 Kan. 507, Syl. ¶¶ 1, 2, 4.
The legislature has provided for appellate procedure in K.S.A. 22-3602(b)(l). This statute states in pertinent part:
“Appeals to the supreme court may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment.”
Herein, the trial court did not dismiss the complaint. The trial court only discharged the defendant on one count of a multiple-count complaint. The State voluntarily dismissed another count of the complaint. However, one count of the complaint, consumption of alcohol by a minor (Count III), is still pending in the trial court. There is no statutory authority for this appeal. This appeal is dismissed for lack of subject matter jurisdiction.
Appeal dismissed.
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The opinion of the court was delivered by
Six, J.:
The proceeds of two life insurance policies are at issue here. A wife changed the beneficiary from her husband to her parents after filing for divorce. The wife died of injuries received in a vehicle accident while the divorce action was pending. No restraining order had been filed in the divorce action. After a bench trial on the validity of the beneficiary change, the district court ruled for the parents. The plaintiff husband, William B. Wear, appeals.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on this court’s motion).
We affirm the district court. Death ended the divorce action. The wife as the designated owner of the policy exercised her contractual right to change the beneficiaiy. Equity as a matter of law did not apply.
FACTS
A summary of the district court’s findings of fact sets the stage for presentation of the issues.
William and Arilla Wear were the parents of two daughters. William is retired from the Army. In January 1993, William and Arilla moved back to Hays, Kansas, where both were employed at various jobs. They decided to purchase a $75,000 life insurance policy on Arilla’s life. William was the named beneficiaiy. Arilla was designated as the owner in the application. Arilla applied in 1993, through her employer, for a $25,000 life insurance policy. William was also the initial beneficiary of this policy.
On February 7,1994, Arilla filed a petition for divorce. Approximately 10 days after filing, Arilla changed the beneficiaries on both life insurance policies from William to the defendants, James C. Mizell and Arilla (Dolly) A. Mizell, her parents. During the pendency of the divorce, the parties maintained separate homes. William paid child support. The premiums on the $75,000 policy were paid by automatic withdrawals from a joint tenancy checking account.
William and Arilla had discussed reconciling. They planned a camping trip with their children for April 29, 1994, which was Arilla’s birthday. The day before, while driving to pick up camping equipment, Arilla was fatally injured in a one-vehicle accident.
William learned that the beneficiary on both policies had been changed to the Mizells. The $75,000 policy contained a double indemnity clause for accidents. Ultimately, the proceeds of both policies, $177,694.56, were paid to the Mizells. At the time of ArHla’s death, she and William had substantial credit card indebtedness and also various bills, including a debt to William’s mother of approximately $9,450.
The parties to this action discussed how the insurance proceeds should be used for the benefit of the two minor children. They also discussed whether the Mizells should pay some of William’s indebtedness. The Mizells decided to make a gift to William of $20,000. Eventually, they made payments of approximately $20,000 directly to William’s creditors.
The Mizells told William the insurance proceeds were theirs and that they intended to use the funds as they saw fit for the benefit of their two granddaughters. This lawsuit followed.
DISCUSSION
The district judge, although acknowledging K.S.A. 23-201(b), concluded that
“once the death of Arilla occurred, this matter went from a question to be determined under domestic relations law, to one of intestate succession and contract. No restrictions were entered on either party during the pendency of the divorce action which would prevent them from changing beneficiaries on their insurance policies.”
The Mizells were the beneficiaries and were entitled to the proceeds. The district judge did not view the matter as a case in equity. The Mizells argued that an accord and satisfaction existed, because William had accepted approximately $20,000 after his demand for the insurance proceeds. The district judge decided that the Mizells had intended the payment as a gift.
The Mizells did not cross-appeal on the accord and satisfaction issue. Thus, our only question is: Was the district court correct in ruling, as a matter of law, that equity did not apply? The answer is, “Yes.”
William argues that the district court erred in refusing to exercise its equitable powers. The resolution of this appeal involves a review of the district court’s conclusions of law. Our review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Beneficiary Interest
We described the interest of a beneficiary in a life insurance policy in Holloway v. Selvidge, 219 Kan. 345, 349, 548 P.2d 835 (1976) (quoting 4 Couch on Insurance 2d § 27:58, pp. 561-64), as follows:
“ Where a right to change the beneficiary is reserved in the policy, the beneficiary has no vested or indefeasible interest during the lifetime of the insured, but only a revocable expectancy contingent upon being the beneficiary at the time of the insured’s death. A beneficiary has only an inchoate right to the proceeds of a policy, subject to being divested at any time during the lifetime of the insured, by transfer, assignment, or change of beneficiary.....’”
Hollaway is factually distinguishable from this case. In Hollaway, we considered an attempted beneficiary change made after a property settlement agreement and divorce decree were entered. Leo (the insured) had accumulated KPERS benefits and obtained a life insurance and disability/accident policy while married to Rosalyn, who was designated as the beneficiary. As part of their divorce, Leo and Rosalyn reached a settlement agreement dividing their assets and relinquishing all claims against each other. Several months later, Leo married Judy. Within a few weeks Leo was killed. He had attempted to change the beneficiary from, Rosalyn to Judy for both his KPERS benefits and the life insurance policy. His employer did not have the right forms on hand to accomplish the change. Despite the lack of beneficiary change, we affirmed the district court’s determination that Judy, the second wife, as administrator of Leo’s estate, was entitled to the KPERS benefits and the insurance proceeds. “We think a fair reading of [the settlement agreement] amounts to a relinquishment of [Rosalyn’s] inchoate rights or expectancies both to the insurance proceeds and the KPERS benefits and the decedent’s estate is therefore entitled to them.” 219 Kan. at 350-51. Also, the district court concluded that Leo had done everything that he could to accomplish the beneficiary change.
William asserts that he and Arilla had a “tacit understanding that they would maintain life insurance on their own lives to protect the other.” However, a tacit understanding does not amount to a contract. William, as the initial beneficiary on Arilla’s life insurance policies, had no vested interest in the policies. His interest, if any, must arise under our domestic relations law.
Applicable Domestic Relations Statutes
A review of the pertinent domestic relations statutes is appropriate. K.S.A. 23-201 provides:
“(a) The property, real and personal, which any person in this state may own at the time of the person’s marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to a person by descent, devise or bequest, and the rents, issues, profits or proceeds thereof, or by gift from any person except the person’s spouse, shall remain the person’s sole and separate property, notwithstanding the marriage, and not be subject to the disposal of the person’s spouse or hable for the spouse’s debts.
“(b) All property owned by married persons, including the present value of any vested or unvested military retirement pay, whether described in subsection (a) or acquired by either spouse after marriage, and whether held individually or by the spouses in some form of co-ownership, such as joint tenancy or tenancy in common, shall become marital property at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment. Each spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 60-1610 and amendments thereto.”
Arrilla’s filing of the divorce petition activated K.S.A. 23-201(b). We said in Cady v. Cady, 224 Kan. 339, 344, 581 P.2d 358 (1978):
“[T]he fifing of a petition for divorce or separate maintenance creates a species of common or co-ownership in one spouse in the jointly acquired property held by the other, the extent of which is determined by the trial court pursuant to K.S.A. 1972 Supp. 60-1610(b). Except for those rights which vest by virtue of the filing of the divorce action, we in no way change the interest of one spouse in the property held by the other, or in the ability of the other spouse to convey, sell or give away such property.”
Both of the life insurance policies were obtained during the marriage of William and Axilla. Income earned during the marriage was used to pay the premiums. Under the facts here, these policies and the right to receive the insurance proceeds upon the death of the insured are marital property within the meaning of K.S.A. 23-201(b).
In order to preserve the status, quo between the divorcing parties as to marital property, K.S.A. 60-1607(a) authorizes the court to enter certain interlocutory orders including to
“(1) [j jointly restrain the parties with regard to disposition of the property of the parties and provide for the use, occupancy, management and control of that property.”
At the February 14, 1994, hearing following the filing of Arilla’s divorce petition, she sought orders for temporary custody of the children and temporary child support. William appeared pro se. He did not contest the award of temporary custody and support to Arilla. Arilla’s attorney represented that he would prepare die journal entry. However, none was ever prepared or filed. No other temporary orders in the divorce action were requested by William or Arilla before her death. No restraining order as to disposition of marital property was either requested or entered.
In finalizing a divorce, the district court is authorized under K.S.A. 60-1610(b) to make an equitable division of the marital property in the decree. No divorce decree was entered. William and Arilla did not reach a property settlement.
A divorce action is purely personal and ends on the death of either spouse. See generally In re Marriage of Wilson, 245 Kan. 178, 777 P.2d 773 (1989). In Wilson, at the divorce hearing, the parties agreed on a property settlement, child custody and support, and maintenance, and the wife’s attorney was directed to prepare the decree. However, 9 hours before the divorce decree and judgment were journalized and filed, the husband died. The wife then requested to be relieved from the decree. The district court, which was affirmed on appeal, held that the journal entry was void because the parties were still married at the time of the husband’s death. If there is no divorce, there is no division of property. 245 Kan. at 181.
Arilla died before any divorce decree or other order concerning the marital property was entered in the divorce action. A divorce action abates at the time of death.
Change of Beneficiary in a Pending Divorce Action
William argues that the district court’s error was in holding as a matter of law that it had no equitable power to consider who was entitled to the proceeds once Arilla had died, when the beneficiary change was attempted in a pending divorce. William relies pri marily on Willoughby v. Willoughby, 758 F. Supp. 646 (D. Kan. 1990), and Pierce v. Pierce, 12 Kan. App. 2d 810, 758 P.2d 252 (1988), aff’d 244 Kan. 246, 767 P.2d 292 (1989). Both cases are distinguishable. In Willoughby, at the time Edna, the wife, filed for divorce, her husband, Martin, was the insured under a life insurance policy. Edna was the beneficiary. She obtained a standard form restraining order at the time the petition was filed. The order prohibited the parties from withdrawing, selling, encumbering, or disposing of their money, property, or assets not needed for day-to-day living expenses. After Martin had been served a copy of the restraining order, he changed the beneficiary to his son, Terry, with his father, Felton, as secondary beneficiary. Terry was killed a few days later. Martin committed suicide. Edna sued Felton and the insurance company in federal district court, claiming that she was the rightful beneficiary and relying on the restraining order. Felton argued that the restraining order did not restrain Martin from changing beneficiaries on the insurance policy, because a beneficiary’s right to receive benefits is a mere expectancy, not property subject to the order. Although the restraining order did not specifically mention the insurance policy, the court held that the policy was property within the terms of the restraining order and that Martin was restrained from changing beneficiaries. 758 F. Supp. at 649.
Willoughby has been cited in two cases involving similar fact situations: Pope v. Cauffman, 885 F. Supp. 1451 (D. Kan. 1995), and Graham v. Graham, 195 W.Va. 343, 465 S.E.2d 614 (1995). For examples of restraining orders containing express provisions concerning life insurance policies (unlike the general terms of the restraining order in Willoughby), see Travelers Ins. Co. v. Daniels, 667 F.2d 572 (7th Cir. 1981); Candler v. Donaldson, 272 F.2d 374 (6th Cir. 1959); Standard Insurance v. Schwalbe, 110 Wash. 2d 520, 755 P.2d 802 (1988). The better practice is to specifically reference a prohibition against a beneficiary change in a marital property restraining order.
The Mizells distinguish Willoughby on the basis that in Willoughby a temporary restraining order was entered before the beneficiary change. William argues here that the result in Willoughby would have been the same, even without a restraining order. However, that proposition seems doubtful. The heart of the Willoughby decision is the finding that the beneficiary change violated the restraining order. All of the cases from other jurisdictions relied upon in Willoughby involved beneficiary changes that violated restraining orders or decrees.
There are no reported Kansas cases with Willoughby-type facts, i.e., a standard form restraining order followed by a beneficiary change. However, this factual situation has arisen in other jurisdictions, with varying results. See Annot., Divorce and Separation: Effect of Court Order Prohibiting Sale or Transfer of Property on Party’s Right to Change Beneficiary of Insurance Policy, 68 A.L.R.4th 929, § 3. See also 4 Couch on Insurance 3d § 64:20 (1996):
“A temporary restraining order or injunction obtained in order to prevent an insured spouse from transferring property during pendency of divorce proceedings may also preclude the insured from changing beneficiary during pendency of suit, notwithstanding that no precise reference was made to life insurance policies. Any such temporary order is effective only as to actions taken after the order is made, and cannot invalidate the insured’s prior change of beneficiary in accordance with the rights and procedures under the policy terms.”
Counsel has not cited, nor have we found, any cases from other jurisdictions in which a beneficiary designation made during a pending divorce action was held void without there having been a restraining order in effect. The cases which have voided beneficiary changes in pending divorce actions appear to rely, at least in part, on the fact that the attempted change violated an existing order prohibiting such a change. When the change of beneficiary is made before a temporary restraining order in a divorce action went into effect, the change has been upheld. See Edinburg v. Massachusetts Mut. Life Ins. Co., 22 Mass. App. 923, 925, 492 N.E.2d 1182 (1986) (“When [husband] executed the change of beneficiary form, he acted pursuant to the terms of the policies. He was not violating any court order when he did so because no order prohibiting a change had been entered.”).
In Pierce, the husband’s change of beneficiary designation occurred years after the divorce decree had been entered. The at tempted change was held void because it violated an express provision in the decree. The decree required the husband to name and keep the minor children of the first marriage as beneficiaries on the policy. The insurance proceeds belonged to them.
William’s Equitable Claim
William argues that he became a vested co-owner of the policy at the time Arilla filed for divorce, by virtue of K.S.A. 23-201(b).
William does not assert that the district judge interpreted the policies incorrectly. William’s sole argument on appeal is that the judge erroneously determined that he had no equitable power to grant relief. William argues that the district court’s ruling conflicts with the pretrial order finding that this matter was in equity. However, the pretrial order only found that William’s claim sounded in equity. The question of whether William was entitled to any equitable relief was left to the district judge to determine at trial. The district judge’s ruling that “this matter is not a case in equity” resulted from his view of the legal consequences of the facts shown at trial.
William contends that the district court abused its discretion by allowing the case to proceed on an equity theory, only to decide, after all the evidence was presented, that it was not an equity case. We disagree. The manner in which the case proceeded was influenced by the facts developed at trial and the theories William pursued.
William cites Rice v. Garrison, 258 Kan. 142, 898 P.2d 631 (1995), for the proposition that a court has equitable power to find that a change of life insurance beneficiary is ineffective or void. Even assuming that proposition to be true, Rice does not add any support to William’s position. We decided in Rice that the facts did not merit application of equitable powers: “Invalidating a deceased’s designation of beneficiary on life insurance or pension benefits on equitable grounds is nothing to be undertaken lightly and would require some compelling factual situation not present herein.” 258 Kan. at 154 (district court’s imposition of constructive trust over life insurance proceeds and pension contributions for the benefit of the second wife, contrary to decedent’s beneficiary designation in favor of first wife, was reversed).
The ownership interest created under K.S.A. 23-201(b) in marital property is for a property division under K.S.A. 60-1610. As stated in Wilson, 245 Kan. at 181, if there is no divorce because of the death of a spouse, there will be no division of marital property. Absent entry of a K.S.A. 60-1607 order restraining the parties from changing beneficiaries on life insurance policies, K.S.A. 23-201(b) imposes no restrictions on either party from making such changes during the pendency of the divorce.
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The opinion of the court was delivered by
Davis, J.:
This is a direct criminal appeal from a first-degree murder conviction. According to his pretrial statements and other trial evidence, the defendant Barry Clark shot and killed Thejuan Hollinshed. The defendant contends that the trial court erred (1) by failing to instruct on the lesser included offense of voluntary manslaughter based upon “sudden quarrel,” (2) by instructing the jury to continue deliberation after it was deadlocked, and (3) by admitting hearsay concerning the defendant’s knowledge about another shooting. We find no merit in these contentions and affirm.
On the night Hollinshed was killed, Shalon Finley invited several friends for dinner, including the defendant and Hollinshed. Eddie Jenkins, a friend of the defendant, also attended the dinner party. According to Finley, Hollinshed and the defendant seemed to be interacting well and there did not appear to be any problems between them.
At the party, the defendant showed several people a 9 mm. pistol he carried on his person. Later in the evening, the defendant asked Hollinshed to go outside and smoke a marijuana joint with him. Hollinshed agreed and left the party to join the defendant.
Finley testified that Hollinshed had “thrown up” gang signs in the past and held himself out to be a member of the Bloods. She also testified that the defendant had in the past made signs indicating that he was a member of the Crips.
Shirron McCord, a stepniece of Finley, also attended the party. She confirmed that the defendant invited Hollinshed outside to smoke a joint. She testified that she went outside to talk to another woman, heard gunshots, and went to the front of the house and hid behind a tree. She saw Hollinshed lying on the ground. The defendant was standing over Hollinshed, shooting him with a pistol. The defendant then ran up some stairs onto a nearby street. McCord admitted that when questioned by the police, she did not tell them that she saw the defendant shoot Hollinshed because she was afraid. Later, however, she told the whole story to Detective Gardner, who was her sister’s husband. McCord stated that she did not see Jenkins with the defendant during the shooting.
Detectives Kenneth Allen and Clyde Blood of the Kansas City, Kansas, police homicide division testified that they took two recorded statements from the defendant concerning the murder. Allen testified that the two statements were necessary because the defendant indicated that he had lied in the first statement.
The State proposed to play both recorded statements to the jury. The defendant’s attorney objected on the grounds that certain statements that had been made by the defendant on the recording concerning a murder of another person, Richard Jasper, were hearsay and were not relevant. The district court overruled the objections, and the statements were played for the jury.
In his first recorded statement, the defendant told police that he went to the party and while there he did some drugs and got drunk. The defendant stated that he had a 9 mm. pistol in his possession and that the pistol belonged to Jenkins, a friend of his who was also at the party. He told police that he gave the gun back to Jenkins before leaving the party.
According to the defendant’s first statement, Hollinshed asked the defendant about getting a marijuana joint. The defendant told Hollinshed that he was leaving the party. As the defendant was walking away from the party, Hollinshed caught up with the defendant and walked with him. They went to the house of a girl that the defendant knew, but she was not home. The defendant and Hollinshed then began walking back to the party.
The defendant told police that as he and Hollinshed got to the parking lot of the housing project where the party was located, Jenkins called him over. The defendant and Hollinshed walked over, and suddenly Jenkins pulled a gun and shot Hollinshed in the back a number of times. Both the defendant and Jenkins then ran from the scene.
The defendant told police that he suspected Jenkins might have killed Hollinshed because Hollinshed and two others had shot at the defendant a few hours earlier that night. The defendant indicated that Hollinshed and the others had been “wet on water” (high on drugs) and had not recognized the defendant at the time that they had shot at him. Further, the defendant told police that Jenkins was a Crip and Hollinshed a Blood and they had been shooting at each other a month earlier.
Based on information given to them by Shirron McCord, police again questioned the defendant. This time, the defendant told a different story. The defendant told police that when Jenkins called to him and he and Hollinshed went over to talk with Jenkins, Jenkins hit Hollinshed in the face. Hollinshed then put his hands in his pocket as if he was going to pull a gun, and the defendant drew his gun and shot him repeatedly. The defendant told police that Hollinshed was “turning around” as the defendant shot him. The defendant stated that he then gave the gun to Jenkins and Jenkins shot Hollinshed while Hollinshed was lying on the ground. The defendant and Jenkins then fled the scene.
The police then asked the defendant whether the shooting was related to the murder of Richard Jasper. The defendant stated that it was not. When asked whether he had any information on the subject of that murder, the defendant stated that he had spoken to a man named Kenny, who had supposedly killed Jasper, and also to the mother of Kenny’s child, who had told him that Hollinshed had taken the purse of Kenny’s girlfriend and blamed the theft on Jasper. Kenny then killed Jasper.
Dr. Erik Mitchell, a forensic pathologist, testified that his autopsy determined that Hollinshed died of multiple gunshot wounds in the back. He identified seven separate entry wounds. On cross-examination, he testified that some of the wounds were consistent with the victim turning around when shot.
The defendant presented no evidence. At the instructions conference, both the State and the defendant’s counsel indicated that they had gone through the possible lesser included offenses, and the defendant’s counsel stated that he agreed with the court’s proposed instructions.
Two and a half hours after the jury began deliberations, the presiding juror informed the court that the jury was deadlocked and she did not see any chance of reaching a verdict. The court asked the jurors whether any of them thought further deliberation would be helpful, and 7 of the 12 jurors raised their hands. The judge then asked the attorneys outside the presence of the jury whether they had any objection to his asking the jurors to continue deliberations. The defendant’s counsel objected. The judge then asked the jury to return and attempt to deliberate again, stressing that the jurors were not under a time constraint or under pressure to reach a verdict. After continuing deliberations for 1 hour that day and then 1 hour the next day, the jury returned a verdict finding the defendant guilty of first-degree murder. The defendant was sentenced to life imprisonment without parole eligibility for 25 years.
Instruction — Lesser Included Offense
The facts upon which the defendant relies for his claim that a lesser included offense instruction on voluntary manslaughter under the theory of sudden quarrel should have been given are these: In his second pretrial statement to police, the defendant said that Jenkins hit Hollinshed, who then reached in his pocket. This action prompted the defendant to shoot Hollinshed because the defendant thought the victim was reaching for a gun. The quarrel, if any, was between Jenkins and Hollinshed, not the defendant and Hollinshed. The court did instruct on voluntary manslaughter under the theory that the defendant acted upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person.
A trial court’s duty to instruct on a lesser included offense arises where the evidence, when viewed in the light most favorable to the defendant’s theoiy, would justify a jury verdict in accord with the defendant’s theoiy. State v. Moncla, 262 Kan. 58, 74, 936 P.2d 727 (1997). Where, as here, there is no evidence supporting a theory of “sudden quarrel,” there is no duty to instruct.
Coercion — Trial Court’s Instruction After Jury Reported That It Was Deadlocked
It is a fundamental rule that the judgment of an individual juror is not to be subjected to the pressure of coercive or oppressive acts and statements on the part of the court, but is to be exercised free from judicial threat, harassment, constraint, or compulsion. State v. Earsery, 199 Kan. 208, 211, 428 P.2d 794 (1967). The rule protects the fundamental right to a fair trial and seeks to prevent the risk of the jury being coerced to make decisions it might not otherwise make or the court violating die right of jurors to disagree without being penalized therefor. State v. Basker, 198 Kan. 242, 247, 424 P.2d 535 (1967).
The following brief statement of facts amply supports our conclusion that the defendant’s claim of judicial coercion is without merit. Two and a half hours after the jury began deliberating, the presiding juror informed the court that the jury was deadlocked and that she did not see any chance of reaching a verdict. The court asked the jurors whether any of them thought further deliberation would be helpful. Seven of the 12 jurors raised their hands. The court then asked the attorneys outside the presence of the jury whether they objected. In response to the court’s question, the defendant’s counsel lodged an objection to any attempt to ask the jury to deliberate further.
The court then asked the jurors to return and attempt to deliberate again, stressing that they were not under a time constraint or under pressure to reach a verdict. The judge instructed the jury:
“Ladies and Gentlemen, in light of the thoughts I heard expressed by all of you, I am going to ask you to return one more time and to attempt to deliberate again. You are not under any time constraint or pressures at all here to reach a verdict and you may take whatever time is necessary. So I’m going to ask you to return once again to your deliberations room and begin deliberating once more.”
After continuing deliberations for 1 hour that same day and for 1 more hour the following day, the juiy returned a verdict finding the defendant guilty of first-degree murder. Contrary to the defendant’s contention, the above facts establish an exercise of sound judicial discretion.
Admission of Hearsay
As part of the taped confession played to the jury, the State introduced the defendant’s statement wherein he told police that he had talked to the person who had been involved in the murder of Richard Jasper. The exact conversation between the defendant and the police is as follows:
“Q: Do you know anything about the homicide of a man named Richard Jasper?
“A: Yes.
“Q: What do you know about that?
“A: Just know that I heard off the streets that Thejuan was supposed to have— his girlfriend’s purse — and they killed him.”
Later, the conversation again turned toward the Jasper murder:
"Q: Okay, now let’s go back to this other homicide on Richard Jasper. You seem to have some knowledge of that. Can you tell me what you know about it?
“A: Well, I talked to the guy who was supposed to have done it, Kenny. I talked to his baby’s mother, and she told me a lot about it. She told me about that Thejuan was supposed to have snatched her purse, a girl named Jamie’s purse, and said that Richard did it and they killed, I mean he killed Richard.”
The defendant objected to the admission of the above statements at trial on the grounds of hearsay and relevancy. The court determined that the evidence would be admitted, although noting that if the question was asked on the stand, it would not be relevant.
K.S.A. 60-460 provides that evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible, with certain exceptions. The unique facts in this case are interesting because the statement sought to be introduced is that of Kenny and the mother of his baby relating to a crime committed by Kenny, and the person relating the hearsay statement is in fact the defendant, who now objects to its admission. There is no question that the statements that were admitted were hearsay, in that neither Kenny or the mother of his baby were available to testify as to what they told the defendant. Further, these statements do not fit any of the exceptions to hearsay found in K.S.A. 60-460.
We agree with the trial court’s conclusion that the evidence was not relevant. The only possible relevancy would be to show that the defendant had some motive to shoot Hollinshed. However, no other evidence was offered by the State to establish this motive, and the statements themselves do nothing to establish such a motive. Thus, the statements should have been excluded.
However, errors that do not affirmatively cause prejudice to the substantial rights of the complaining party do not require reversal when substantial justice has been done. State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994). The defendant is unable to point to any way that the admission of the hearsay evidence caused prejudice. The defendant claims that the admission of the evidence allowed the jury to speculate about the connection between himself and Jasper as a possible motive for the shooting. However, from the entire record, there was no connection established between the defendant and Jasper. In fact, there was no evidence presented to the jury that the defendant even personally knew Jasper, much less that the defendant and Jasper were friends and that the defendant would kill to obtain vengeance on the person responsible for Jasper s death. The admission of hearsay by the trial court did not prejudice the substantial rights of the defendant.
Affirmed.
Lockett, J., not participating.
Richard W. Wahl, Senior Judge, assigned.
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The opinion of the court was delivered by
Davis, J.:
Timothy D. Hamilton submitted a claim under his homeowner’s policy for the collapse of a basement wall. State Farm Fire and Casualty Company (State Farm) denied coverage. The jury awarded Hamilton $4,750, the cost of repairs. The trial court granted Hamilton prejudgment interest but denied attorney fees, concluding that fees may be awarded under K.S.A. 40-908 only when the loss is caused by fire, tornado, lightning, or hail. We reverse and remand for a determination of reasonable fees. We also affirm the award of prejudgment interest.
Hamilton purchased from State Farm a homeowner’s policy covering his house. The policy covered direct physical loss from fire, tornado, lightning, or hail, as well as other losses. It specifically covered direct physical loss involving collapse of an insured building or any part of the building caused by hidden decay. The policy contained an exception for losses caused by earth movements or water damage.
Hamilton filed a claim with State Farm for damages suffered when part of a basement wall collapsed. Based upon the exception for losses caused by earth movements or water damage, State Farm denied coverage. Hamilton filed suit against State Farm for $4,750, the amount he spent to repair the wall.
Laura Williard, Hamilton’s estranged wife, testified that on April 19, 1994, she was residing at the Hamilton’s address. Williard stated that she heard a noise from the basement and smelled natural gas. Upon entering the basement, she found that part of the basement wall had fallen and knocked over the water heater. She called State Farm and was informed that it did not pay for foundation problems. She then referred the matter to Hamilton. Willard stated that there had been no problems with the wall prior to its collapse.
Hamilton testified that he was not living at the house at the time of the wall’s collapse because he and his wife were separated. Upon receiving notice of the collapsed wall, he called Jannel Munk, a claims specialist at State Farm. According to Hamilton, Munk told him that State Farm did not cover basements or foundations. However, Munk agreed to inspect the damage. Hamilton testified that he contacted two companies, Grant Renne & Sons, Inc., and May Development, to come out and give bids to repair the damage. He stated that he also contacted Brad Hagan, another contractor, on the advice of Munk, who told him that Hagan did a lot of work with State Farm.
Hamilton testified that Munk, C. Douglas Carey from State Farm, and Brad Hagan arrived at his house on the afternoon of April 20, 1994. Hagan, Munk, and Carey went into the basement to look at the wall. According to Hamilton, the group spent only a few minutes in the basement. Carey informed him that the loss was not covered and he would be receiving a letter to that effect. Hamilton hired Grant Renne & Sons to repair the damage at a cost of $4,750.
Hamilton testified that State Farm sent him a. letter denying coverage on the basis that the collapse of the wall was caused by heavy rains and water pressure. Hamilton introduced meteorological records for April 1 to April 19, 1997, which showed that the total rainfall in that time period had been 2.13 inches.
Charles Anderson, a contractor for Grant Renne & Sons, who repaired the wall, testified that the earth behind the wall was dry and packed and required the use of a pick and mattock to dig it out to make repairs. Dean Hannen, another contractor for Grant Renne & Sons, also testified. Based upon his 19 years in the foundation repair business, he was of the opinion that the. wall collapsed due to hidden decay. He also testified that the dirt behind the wall was hard and the pattern of damage did not look as though it had been caused by settling or expansion of the foundation.
State Farm presented the testimony of Jannel Munk, the claims specialist who had worked on Hamilton’s claim. Munk testified that she first talked to Williard and implied that the claim might not be covered but that she would take a look at the damage. According to Munk, Williard asked her to contact Hamilton. Munk stated that she went with her supervisor, C. Douglas Carey, to inspect the damage. They found Brad Hagan already at the site, although Munk denied that she had ever advised Hamilton to contact him.
Munk stated that she, Carey, and Hagan went into the basement and took pictures of the damage. They then went outside to look at the north side of the house where the collapse had occurred. She testified that there was a concrete trough on the north side of the house and there was a sunken area in the trough which looked as if it might trap water. She stated she and Carey advised Hamilton and Williard that there was no coverage and later sent a letter to that effect. Carey also testified that there was a low spot in the trough outside the wall. In Carey’s opinion, the collapse was caused by heavy soil due to moisture. Hagan was also of the opinion that the collapse was caused by moisture as well as the fact that the wall was not properly installed.
On cross-examination, Carey admitted that when he initially assigned the case to Munk, he wrote a note to her stating that he could not think of any way that Hamilton’s claim would be covered under the insurance policy because the collapse was probably caused by settling, underground water, or earth movement. He also admitted that he did not perform any tests on the wall.
The jury was charged with determining the cause of the collapse. The only real issue involved coverage under the policy. The only evidence on damages was the cost of repair, $4,750. The jury found that the cause of the collapse was hidden decay and found for Hamilton, awarding damages in the amount of $4,750.
Hamilton filed a motion for his reasonable attorney fees and costs based on K.S.A. 40-908 and K.S.A. 40-256. The district court denied Hamilton’s motion. Hamilton also filed a motion to determine interest and costs. The district court granted the motion and awarded Hamilton prejudgment interest in the amount of $688.52.
Hamilton appeals the district court’s denial of his motion for attorney fees. State Farm cross-appeals the district court’s granting of prejudgment interest.
Attorney Fees Under K.S.A. 40-908
Hamilton argues that the .district court erred in failing to award him attorney fees under K.S.A. 40-908. He contends that under the plain language of K.S.A. 40-908, he is entitled to recover.
K.S.A. 40-908 provides:
“That in all actions now pending or hereafter commenced in which judgment is rendered against any insurance company on any policy given to insure any property in this state against loss by fire, tornado, lightning or hail, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action including proceeding upon appeal to be recovered and collected as a part of the costs: Provided, however, that when a tender is made by such insurance company before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no costs shall be allowed.”
Hamilton argues that since judgment was rendered against State Farm on his homeowner s policy, which is a policy given to insure his property against loss by fire, tornado, lightning, or hail, among other things, he is entitled to attorney fees under the statute. State Farm, on the other hand, argues that in order for attorney fees to be recovered under the statute, the actual loss must come from fire, tornado, lightning, or hail. It is undisputed that no tender was ever made by State Farm.
Interpretation of a statute is a question of law, and this court’s review is unlimited. Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 192, 891 P.2d 385 (1995). When interpreting a statute, the fundamental rule is that the intent of the legislature governs if that intent can be ascertained. When a statute is plain and unambiguous, the court must give effect to the intent of the legislature as expressed rather than determining what the law should or should not be. Davey v. Hedden, 260 Kan. 413, 419, 920 P.2d 420 (1996).
In support of its argument that K.S.A. 40-908 applies only to those losses which actually occur as the result of fire, tornado, lightning, or hail, State Farm cites Millers’ Nat. Ins. Co., Chicago, Ill. v. Wichita Flour M. Co., 257 F.2d 93 (10th Cir. 1958). In Millers’, the Tenth Circuit Court of Appeals interpreted G.S. 1949,40-908, the predecessor statute to K.S.A. 40-908, in this manner. It determined that the type of loss rather than the type of policy issued controls. 257 F.2d at 102-03. In reaching this conclusion, the court noted that the statute had been amended before to include hail in response to this court’s decision in Ring v. Assurance Co., 100 Kan. 341, 343-44, 164 Pac. 303 (1917), wherein this court found that the statute did not apply to a hail insurance policy. Millers’, 257 F.2d at 102 n.22. The Millers’ court seemed to reason that if the type of policy rather than the type of loss controlled, there would have been no need to amend the statute to include hail.
Millers’ also stated that to hold that the type of policy controlled would result in the anomalous situation in which attorney fees could not be recovered on a policy that insured only against a loss (in this case an explosion), but attorney fees could be recovered if the policy which insured against the explosion also covered losses by fire. 257 F.2d at 103 n.23. Accordingly, the court found that the type of loss, not the type of policy, controls and that in order for attorney fees to be recovered under the statute, the loss itself must be from fire, tornado, lightning, or hail. 257 F.2d at 102.
The decision in Millers’ has not been followed in Kansas. Three years after Millers’, in Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 534-35, 358 P.2d 786 (1961), this court addressed the application of G.S. 1949, 40-908. In Ferrellgas, we stated that under the statute, “[i]f the policy is one insuring property as provided in [the statute], the insurance company must pay attorney fees as provided therein.” 187 Kan. at 534. Accordingly, we found the statute applicable to damage caused by wind, noting that “[t]here can be no question about the authority of the court to allow attorney fees if, as we have now decided, G.S. 1949, 40-908 is still in effect.” 187 Kan. at 535.
Similarly, in Thomas v. American Family Mut. Ins. Co., 233 Kan. 775, 780, 666 P.2d 676 (1983), we found no error in the award of attorney fees under K.S.A. 40-908 to the plaintiff where the damage to his residence was caused by a windstorm. Both Ferrellgas and Thomas support the proposition that in determining whether K.S.A. 40-908 applies, the type of policy which provides recovery, rather than the type of loss, is the determining factor.
State Farm did not address Ferrellgas in its brief and was unfamiliar with it in responding to the court’s questions. State Farm argues that the reasoning in cases such as Thomas is inapplicable and should not be followed because such cases did not directly address the question of whether type of policy or type of loss controls. Instead, State Farm urges that die reasoning of Millers’ should be followed. However, this argument ignores the rather direct statement of the coverage of the statute in Ferrellgas. See 187 Kan. at 534-35. Moreover, the reasoning in Millers’ has some obvious flaws.
The Millers’ court based part of its conclusion on the amendment of the statute to provide for the allowance of attorney fees in policies insuring against hail loss. See 257 F.2d at 102. The trial court in this case was heavily influenced by the same amendment in its refusal to award Hamilton attorney fees. In denying Hamilton’s request on this issue, the court stated:
“The legislative record is silent as to the intent of the drafters of the statute. The only clue to the legislature’s intent is the fact that K.S.A. 40-908, when initially enacted in 1927, did not mention hail as one of the types of losses covered. The statute was subsequently amended to add hail. That amendment would seem to have been unnecessary had the [legislature] intended for any loss under such a policy to fall within the statute.”
The flaw in the above reasoning is revealed by the statutory history. The amendment to K.S.A. 40-908 adding hail was enacted by the legislature in 1929. L. 1929, ch. 199, § 1. Prior to this amendment, in Ring v. Assurance Co., 100 Kan. at 343-44, this court held that the statute did not apply to a loss under a hail insurance policy. However, the policy at issue in Ring was not one in which the same policy that provided coverage against hail loss also covered fire, tornado, or lightning. Instead, it is clear that the policy covered only hail loss. Thus, the amendment in 1929 is less an indication that the legislature meant the statute to cover only specific losses such as fire, tornado, lightning, or hail and more an indication that the legislature meant to bring hail insurance policies, such as the one in Ring that covered the insured’s crops, within the protective umbrella of the statute.
The second line of reasoning employed by the court in Millers’ was that allowing the type of policy rather than the type of loss to be determinative of the statute’s application would result in the anomalous situation where attorney fees could be recovered if the loss came under a comprehensive policy which insured against both fire and the loss which occurred, in that case an explosion, while attorney fees could not be recovered if the loss came under a policy which insured only against explosion. See Millers’, 25 F.2d at 103 n.23. However, this situation is not so anomalous when the intent of the statute is considered.
In Light v. St Paul Fire & Marine Ins. Co., 132 Kan. 486, 490, 296 Pac. 701 (1931), we stated that the statute at issue is a public interest statute, prompted by the “pertinacious practices of insurance companies,” that penalizes insurance companies for not making prompt payment of claims which are adjudged to have been meritorious. Later, in Lattner v. Federal Union Ins. Co., 160 Kan. 472, 480-81, 163 P.2d 389 (1945), we stated that the purpose of K.S.A. 40-908 is not to penalize an insurance company for making what it deems to' be a bona fide defense to an action to recover on an insurance policy, but to permit the allowance of a fair and reasonable compensation to the assured’s attorney in the event, after having been compelled to sue on the policy, he or she is successful in that effort.
We conclude K.S.A. 40-908 is designed to provide for attorney fees for the homeowner upon successful suit under the policy absent a tender by the insurance company. Fees shall be allowed as a part of the costs under the statute where the homeowner obtains judgment for a covered loss under the homeowner’s policy, which judgment is in excess of any amount tendered by the insurance company before commencement of the action. Application of the statute is not dependent upon the type of loss incurred. Rather, providing all conditions of die statute are met, costs, including reasonable attorney fees, are awarded where policy coverage for the loss incurred by the insured homeowner exists.
The plain language of K.S.A. 40-908 supports such a conclusion. It provides application to any case in which a judgment is rendered on any policy given to insure any property against loss by fire, tornado, lightning, or hail. The policy coverage controls, not the actual type of loss. If the loss is covered by a policy which insures against fire, tornado, lightning, or hail, then the statute applies regardless of whether die actual loss occurred by one of those named causes or some other cause covered by the same policy. We conclude that the trial court erred in determining that K.S.A. 40-908 did not apply in this case and diat Hamilton is entitled to his reasonable attorney fees under this statute.
As a result of our determination that K.S.A. 40-908 applies, we need not consider Hamilton’s contention that he is entitled to recover attorney fees under K.S.A. 40-256.
Prejudgment Interest
State Farm argues that the district court erred in awarding Hamilton prejudgment interest in the amount of $688.52. It contends that the claim for damages in this case was unliquidated and that prejudgment interest does not apply to unliquidated claims.
K.S.A. 16-201 provides for prejudgment interest on liquidated claims. A claim becomes liquidated when both the amount due and the date on which such amount is due are fixed and certain or when the same become definitely ascertainable by mathematical computation. Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 686-87, 847 P.2d 1292 (1993).
State Farm argues that the damages in this case were not certain as evidenced by the fact that damages were left for the jury to determine. While it is true that the jury was allowed to determine damages, there was really no dispute regarding damages in this case. From the beginning, it was clear that Hamilton’s damages were $4,750, the amount that he paid to repair the collapsed wall. The only question at issue was whether the collapse was covered under the policy. State Farm introduced no evidence to dispute the amount of damages and, indeed, made no attempt at all to allege that the claimed damages were in any way excessive. Although the jury was instructed to determine damages, the evidence left it with only one alternative once it decided coverage — to find damages in the amount of $4,750. No other amount would have been supported by the evidence. As a result, the damages were liquidated and the district court did not err in awarding Hamilton prejudgment interest.
Affirmed in part, reversed in part, and remanded.
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The opinion of the court was delivered by
Owsley, J.:
This action involves post-trial motions and orders in a divorce action relative to the effect of the wife’s remarriage on an alimony award. The husband appeals from a nunc pro tunc order made by the trial court changing an alimony judgment to a property division judgment.
The plaintiff, Janet S. Wallace, and the defendant, Donald L. Wallace, were married in 1964 and subsequently had one child. They lived together as husband and wife until 1969 when the wife filed an action for divorce. A divorce was granted the wife in January, 1970, and she recovered an award of alimony in the sum of $7,500 payable over a ten-year period. Other appropriate provisions were made as to custody, child support, and division of property. In December, 1970, the wife remarried. In July, 1971, the husband filed a motion to terminate alimony. Thereupon, the wife filed a motion for a nunc pro tunc order to set aside the award of alimony and change the same to a division of property. In December, 1971, the court changed by nunc pro tunc order the $7,500 judgment for alimony to reflect a division of property in the same amount. The only evidence before the court was in the form of a stipulation, the pertinent provisions of which read:
“The parties and their attorneys prior to appearing before the Court entered into settlement conferences and endeavored to arrive at a fair settlement of their jointly accumulated property. That they were able to agree that the equity in the house and the business would go to the defendant. That the 1967 Mustang automobile would go to the plaintiff, and the defendant would pay a repair bill upon the same, and that the defendant would repay to the plaintiff the sum of $565.35 so that plaintiff could repay that amount to the Kansas State Teachers Retirement Fund since she would be actively reengaging employment as a teacher. That the point upon which the parties could not arrive at an agreement was the sum of money which should be paid from the defendant to the plaintiff to compensate the plaintiff for the property which was going to the defendant and also that the parties were unable to agree upon the exact amount of support money to be paid.
“That the case was then tried to the Court. That in the presentation to the Court it was suggested by the attorneys that any cash award made from the defendant to the plaintiff should be denominated alimony since this would result in a tax advantage for the defendant and since it was contemplated that he would have the higher income would, taking the parties as a whole, result in a net tax saving. That after hearing the evidence the Court divided the property in accordance with the agreements that the parties had arrived at and made an award of $7500.00 denominated alimony. That this award was made payable over a ten year period in order to make sure that the Federal tax advantages would accrue and that later because of a technical error in the phrasing of that award and on the 9th day of October, 1970, a nunc pro time order was made which provided that the $7500.00 alimony would be paid over a period in excess of ten years.
“That the actual fact is that the $7500.00 which was denominated as alimony was actually a property settlement payment to be made to even up the division of the property.”
On appeal, the husband argues the trial court did not have jurisdiction to change the previous judgment, citing Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465; Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846; Beck v. Beck, 208 Kan. 148, 490 P. 2d 628; and Drummond v. Drummond, 209 Kan. 86, 495 P. 2d 994.
The wife contends since the parties agreed the $7,500 was ac tually a division of properly the trial court had the right by nunc pro tunc order to correctly reflect what the parties agreed to in the first instance.
The answer to the question presented in this appeal centers around a proper construction of K. S. A. 1973 Supp. 60-1610 (b) and (c). With relation to this issue, we first considered the statute in Herzmark. There, a judgment was entered divorcing the parties and, in addition to other provisions, an alimony award was made in favor of the wife. Subsequently, the wife .remarried and the husband filed a motion to set aside the unpaid portion of the alimony judgment. We held that remarriage of a recipient of alimony does not of itself operate to release the obligation to pay alimony, but proof of remarriage on motion to modify makes out a prima fade case requiring termination of future alimony payments. In reaching this conclusion we stated care should be exercised in an original decree of divorce that payments to equalize the division of property are not included with payments for future support denominated as alimony.
In Flannery, the wife moved to modify an order for division of property. We stated an alimony judgment may be modified subject to the limitations set out in the statute, but no comparable authority is granted with respect to a division of property. We construed the omission as a deliberate legislative design to withhold from a trial court the power to modify its original decree as to property rights or division of property.
In Beck, the husband appealed from an order on a post-divorce motion to discontinue alimony. The trial court reduced the alimony from $7,500 to $5,000 upon proof of the wife’s remarriage. In its decision the trial court took the position that the award of $7,500 was in the nature of a property settlement. We noted that the record disclosed at the time the divorce was granted both court and counsel regarded the sum as alimony. In setting aside the alimony judgment we repeated the admonition in Herzmark as to the necessity of recognizing the distinction between alimony and a division of property.
In Drummond, the parties entered into a settlement agreement which provided for a division of property and alimony. The agreement was submitted to the trial court and it was approved and made the judgment of the court. Subsequently, the wife remarried and moved to have the alimony award changed to a division of property. We held that the wife’s motion to modify, although aimed at the award of alimony, had the effect of changing the division of property which was prohibited by our decision in Flannery. Counsel for the husband admitted the alimony award was not for future support, but was a means of equalizing the division of property. We held that the written settlement agreement was binding on the parties and the judgment for alimony should be terminated. We recognized that many factors may be considered in negotiating a divorce settlement, one of which is the matter of taxes. We also pointed out that a party to a divorce case has a right to negotiate for a higher award for alimony in lieu of a lesser amount by way of a division of property. We also stated that a party having reached such an agreement cannot attack the judgment based thereon after submitting the agreement to the court requesting its approval. We again reiterated die caveat in Herzmark and Beck, stating:
. . We cannot dictate the provisions of a separation agreement, but court and counsel should be cautious and careful that the parties understand the legal consequences of their acts. The distinction between division of property and alimony should be clearly explained in accordance with the statutes of this state and the decisions of this court.” (p. 92.)
Although we have considered variances in the facts in the instant case from those in Drummond, we have failed to discover any basis for denying application of the law set forth in Drummond. The plaintiff wife points out the agreement in this case was oral while the agreement in Drummond was written. We give this no significance when in each instance the parties ¿greed the amount to be paid to the wife should be designated as alimony. In Drummond, the alimony judgment was entered as a result of asking the court to approve the written agreement, while in the instant case it was done by oral request before the court. An oral request by the parties that a judgment be entered in a certain manner remains subject to the exercise of judicial discretion. When discretion is exercised by the court in the manner requested by the parties, they should not be permitted to attack the judgment and urge a result contrary to their request.
The defendant husband also claims the nunc pro tunc order was erroneously issued. This question was not presented in any of the cases previously oited herein. If the Rial court had the right and power to issue the nunc pro tunc order the foregoing result is incorrect.
Both parties rely on Mathey v. Mathey, 175 Kan. 446, 264 P. 2d 1058. In this ease the court granted a divorce to the plaintiff and in the journal entry awarded certain real and personal property to each of the parties without designating whether the award to plaintiff constituted a division of property or alimony. Subsequently, by nunc pro tunc order, the court corrected the journal entry to show the excess awarded the wife was aotually permanent alimony. In sustaining the order on appeal we stated the following rules relating to nunc pro tunc orders:
“A journal entry purports to be a record of the judgment rendered but it is not necessarily the judgment actually rendered. (Tincknell v. Tincknell, 141 Kan. 873, 44 P. 2d 212; Perkins v. Ashmore, 144 Kan. 540, 61 P. 2d 888; Victory Life Ins. Co. v. Freeman, 145 Kan. 296, 299, 65 P. 2d 559; Bush v. Bush, 158 Kan. 760, 150 P. 2d 168; Hinshaw v. Hinshaw, 166 Kan. 481, 486, 203 P. 2d 201.)
“In the Tincknell case it was held:
“ ‘The proceedings considered in an action for divorce and alimony, in which the record disclosed a money judgment against plaintiff and in favor of defendant for $800, and held, the court was authorized to correct the record to show the judgment for $800 was for permanent alimony.’ (Syl. ¶ 1.) (Italics supplied.)
“If the journal entry fails to accurately reflect the judgment actually rendered it is the duty of the court to make it speak the truth [citations omitted] and that may be done after the term in which the judgment is rendered [citations omitted] even though it be fifty-five years thereafter. . . .
“. . . Briefly stated, the purpose of a nunc pro tunc order is not to change or alter an order or judgment actually made. In other words its function is not to make an order now for then, but to enter now for then an order previously made. . . .” (pp. 450, 451.)
In Cazzell v. Cazzell, 133 Kan. 766, 3 P. 2d 479, it was said:
“Where matters which are an essential part of a judgment are inadvertently omitted from its written text, with the effect that it does not fairly recite what the court intended, and perverts that intention, the omitted matter may be supplied and the journal entry of judgment corrected even after the close of the term, at the instance of an interested party.” (Syl. ¶ 2.)
Application of these rules was affirmed in the following cases (Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225; Aeby v. State, 199 Kan. 123, 427 P. 2d 453; Hoard v. Shelton, 201 Kan. 145, 439 P. 2d 123; and Norcross v. Pickrell Drilling Co., 202 Kan. 524, 449 P. 2d 569.)
The purpose of a nunc pro tunc order is to provide a means of entering the actual judgment of the trial court which for one reason or another was not properly recorded. The right to make the order is based on the failure to accurately record the court’s decision. In the instant case, both of the parties requested in open court that the payment of $7,500 to the wife be awarded as alimony. In compliance with this request the trial court signed a journal entry to this effect. Undoubtedly, the court knew the amount of the award was to equalize the property awarded the husband. Notwithstanding this knowledge, there can be no valid argument that it was not the court’s intention to make the award alimony as requested by the parties. This is in accord with the test of clerical error versus judicial error set forth in 46 Am. Jur. 2d, Judgments, §§ 201 and 202. It is stated:
"The general rule is that an amendment of the record of a judgment, and a nunc pro tunc entry thereof, may not be made to correct a judicial error involving the merits, or to enlarge the judgment as originally rendered, or to supply a judicial omission or an affirmative action which should have been, but was not, taken by the court, or to show that the court might or should have decided, or intended to decide, as distinguished from which it actually did decide. The power of tire court in this regard is to make the journal entry speak the truth by correcting clerical errors and omissions, and it does not extend beyond such function. . . .” (§201, pp. 443, 444.)
"It is often difficult to distinguish between a clerical error in the record of a judgment subject to correction by an entry nunc pro tunc, and a judicial error not subject to such correction. Generally, the distinction is not regarded as dependent upon the source of the error. The important question is not who made the error, but whether the error was made in rendering the judgment, or in recording the judgment rendered. . . .” (§ 202, p. 445.)
The trial court in entering the nunc pro tunc order was not correcting a clerical error. Any attempt by a court, under the guise of correcting clerical error to revise its deliberately exercised judicial discretion, is not permitted.
The stipulation filed by the parties by its terms constituted all the evidence before the trial court on defendant’s motion to modify and on plaintiff’s motion for an order nunc pro tunc. In accord with the foregoing the motion for an order nunc pro tunc should have been denied and the motion to modify should have been sustained. We are reversing the case with directions to sustain the motion to modify.
Reversed with directions.
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The opinion of the court was delivered by
Foth, C.:
The basic issue in this case is the proper interpretation of the rental provisions of a commercial lease.
The lease was dated December 28, 1970, and covered restaurant space in the Kiva shopping center in Wichita. The plaintiff Garvey Center, Inc., was lessor and defendant Food Specialties, Inc., was lessee. The rental provisions (which will be quoted) called basically for a minimum rent of $1,915.21 per month against 8% of gross sales.
The first year of occupancy under the lease ran from September, 1971, to September, 1972. ,The base rent was paid for this period and for the two following months. However, beginning in December, 1972, the lessee began withholding its rent. This action was brought by the lessor on February 27, 1973, for $5,745.63, representing the- three monthly payments of base rent which had been missed at that time.
The defendant filed no answer but did file a motion for summary judgment, alleging that 8% of its gross sales for the first lease year was less than the base rent already paid for that year by $5,019.32. It contended that under the “annual adjustment” provisions of the lease it was entitled to a refund of that amount; if that amount were credited against the rent claimed by the plaintiff only $726.31 would be due. Defendant had tendered the $726.31 and its tender had been refused.
Plaintiff filed a reply to defendant’s motion, together with its own motion for summary judgment. Plaintiff conceded defendant’s gross sales figures, but disputed its contention that a refund was due. Plaintiff’s position was that under no circumstances could the rent be less than the “minimum rental” specified' in the lease. The minimum was due, it asserted, regardless of how low the tenant’s gross sales might fall.
In this posture the case was submitted to the trial court, which granted plaintiff’s motion and rendered summary judgment for the $5,745.63 prayed for. Defendant has appealed, contending for various reasons that the trial court misconstrued the lease and erred in not rendering judgment for it rather than the plaintiff.
The pertinent provisions of the lease follow, summarized where possible and emphasized where deemed of particular importance:
“4. RENT. LESSEE covenants and agrees to pay LESSOR, as rental on LEASED PREMISES, the following:
(a) Base Rent. A fixed minimum rental of $344,737.80 (344,737.80 dollars) which rental shall be paid in equal monthly installments of $1,915.21 (1,915.21 dollars) on the first day of each month during the term hereof, except that LESSEE shall pay, on the first day of the first month of the term hereof, both the first and last monthly installments of rental, and except further that if LESSEE shall commence doing business from LEASED PREMISES prior to the term hereof, base rent shall be paid to LESSOR on a daily pro rata basis as set out in paragraph 2, above.
(b) As additional rent, LESSEE shall pay its pro rata portion of any increase in the cost of real property taxes levied upon the KIVA area beyond the cost of said taxes for the year 1972. The KIVA area, for the purposes of the computation of such pro rata portion, shall include the entire area identified as the KIVA on Exhibit ‘A’ hereto. The computation of LESSEE’S pro rata portion of the taxes shall be made in the following manner:
[Here follows a formula for computing the lessee’s share of any increase in taxes on the shopping center, based on the square feet leased, to be computed at the end of each tax year and allocated by the lease year.]
(c)Percentage Rent. In addition to payment of the Base Rent and Real Property Taxes as provided above, LESSEE shall pay to LESSOR, annually, the amount, if any, by which 8 percent of the gross sales from LEASED PREMISES during each lease year exceeds the aggregate amount of the base rent and the pro rata portion of any increase in Real Property Taxes paid by LESSEE to LESSOR during or attributable to said lease year, the method of computation and manner and time of payment of said percentage rent being more fully set out hereinafter.
“5. COMPUTATION OF PERCENTAGE RENT, RECORDS. MANNER OF PAYMENT.
(a) Gross Sales Defined. [Here follows an extensive definition of the “gross sales” upon which percentage rent is to be based.]
(b) Books and Records, Audit. [Here follows a detailed procedure enabling the lessor to verify the lessee’s gross sales.]
(c) Lease Year Defined. For all purposes under this lease, the term lease year’ shall mean each succeeding 12 month’s period during the term hereof commencing with the first day of the first month of the lease term hereof.
(d) Monthly Installments of Percentage Rent. LESSEE shall submit to LESSOR, within 10 days after the close of each month during the term hereof, a statement showing the gross receipts for such month. Concurrently therewith, LESSEE shall pay to LESSOR any amount by which 8% (percent) of said gross receipts for such month exceeds the aggregate of one month’s base rent hereunder and (one-twelfth) of the last increase in LESSEE’S pro rata portion of real property taxes beyond the base year of 1972 of which LESSEE has been notified by LESSOR.
(e) Annual Adjustment of Percentage Rent. Within 60 days after the close of each lease year hereunder, LESSEE shall submit to LESSOR its statement showing the gross receipts for such lease year. Concurrently therewith, LESSEE shall pay LESSOR the amount, if any, by which 8% of the gross sales for such lease year exceeds the aggregate of the base rentals, the installments of percentage rent, if any, and the pro rata portion of any increase in real property taxes paid by LESSEE during such lease year. Provided, however, that if the aggregate of the base rent, the installments of percentage rent and any pro rata tax increases paid by LESSEE during such lease year exceed said percent of such gross sales„ LESSOR shall, within 60 days after receipt of LESSEE’S statement showing such gross sales, remit and refund such excess to LESSEE." (Emphasis added.)
Defendant’s position is based on the last, emphasized, sentence quoted above. This language, it contends, clearly and unambiguously requires a refund to it for any year in which 8% of its gross sales falls below the monthly installments it has paid. We believe such a position is untenable.
Both parties cite cases setting out time-honored rules for construing contracts. Defendant relies on those holding that the court is not authorized to modify beyond the meaning expressed by the language of the parties. The court, under the guise of construction will not make a new or rewrite an old contract. Wood v. Hatcher, 199 Kan. 238, 428 P. 2d 799; Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P. 2d 803. Plaintiff, while not disputing that rule, emphasizes the equally well accepted maxims that:
“The intent and purpose of a written instrument is not to be determined by considering one isolated sentence or provision thereof but by considering and construing the instrument in its entirety.” (Maltby v. Sumner, 169 Kan. 417, Syl. ¶ 2, 219 P. 2d 395.)
“In placing a construction on a written instrument, reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided. The meaning of a contract should always be ascertained by a consideration of all the pertinent provisions and never be determined by critical analysis of a single or isolated provision.” (Weiner v. Wilshire Oil Co., supra, Syl. ¶ 3.)
See also, Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P. 2d 731; Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P. 2d 350; In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544.
The lease in this case requires no rewriting, but a proper construction of it does require examination of more than the “single or isolated provision” relied on by defendant.
A reading together of sections 4 and 5 leads this court to but one conclusion as to the parties’ intention. Section 4, captioned “RENT,” fixes the lessee’s obligation. Paragraph (a) prescribes a “fixed minimum rental” for the entire fifteen year term, payable in monthly installments. Paragraph (b) obligates the lessee to pay as additional rent its pro rata share of any increase in real estate taxes over the base year. (The obligation is to be determined and is payable annually at the close of each tax [calendar] year after 1972, and the provision has had no opportunity to come into play yet.) Paragraph (c) requires the payment of percentage rent “in addition to” the base rent and tax increases, and refers to provisions “set out hereinafter” for the “method of computation and manner of time and payment.”
The applicable later provision in section 5, “COMPUTATION OF PERCENTAGE RENT, RECORDS. MANNER OF PAYMENT.” That section, as its caption indicates, deals wholly with percentage rent. Paragraph (a) defines the basis to which the percentage is applied; (b) deals with accounting procedures and audits; (c) defines the lease year to be employed in annualizing the obligation for percentage rent. The critical paragraphs here are (d) and (e).
Paragraph (d) requires the lessee to remit 8% of its gross sales eaoh month, after taking credit for that month’s base rent (and for any anticipated tax increase for that month, based on the latest annual tax increase). Our calculations reveal that monthly sales must top $23,940.13 before any monthly percentage rent is due. Paragraph (e) provides for an annual adjustment, made necessary by the requirement of (d) that percentage rent be remitted monthly, while the actual rent obligation is based on 8% of gross sales during the lease year.
Putting aside the “tax increase” provision not presently applicable, it is obvious that if gross sales equalled or were more than $23,940.13 for each month, at the end of the year there would be no adjustment called for because the lessee, in its cumulative monthly payments, would have paid exactly 8% of its annual sales. But if sales in any month fell below $23,940.13 while in others it was above, the lessee would have overpaid its annual obligation at the end of the year.
In the actual case, sales for October, 1971, were $24,253.56, and required a percentage rent remittance for that month of $25.07. At the end of the lease year it appeared that sales for the entire year had averaged considerably less than the magic $23,940.13, so that there was in fact no percentage rent owed for that year. Had the lessee paid the $25.07 as the lease required, it would have been entitled to a refund under the language it relies upon.
However, to give that language the broad meaning defendant now ascribes to it would “reduce the terms of the contract to an absurdity.” (Weiner v. Wilshire Oil Co., supra.) It would mean simply that the rent obligation under the lease was 8% of gross sales, no matter how small, and regardless of the other terms of the lease. Section 4 (a) prescribing a “fixed minimum rental” for the full term would be meaningless — there would be no minimum rental. Similarly the elaborate provisions in 4 (b) for computing the lessee’s pro rata share of tax increases, allocating portions of the tax year to the lease year, and for separate payment of such tax increases as “additional rent” would all be likewise meaningless —if sales didn’t meet the magic figure anything paid under these provisions would be refunded. The bulk of the section of the lease dealing squarely with the lessee’s obligation to pay rent, as opposed to manner of payment, would be mere surplusage.
We have said that “A cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if it can be done consistent with legal principles.” (Hamann v. Crouch, 211 Kan. 852, 508 P. 2d 968.) In this case we have no difficulty in finding that the parties intended that there should be a “fixed minimum rent,” as provided in 4 (a), regardless of the lessee’s gross sales. The proviso in section 5 (e) of the lease establishes a method for adjusting percentage rent only, and was designed to cover a situation where payments of such percentage rent by the month resulted in an overpayment of the annual percentage rent due. Such an adjustment was not intended to reduce the lessee’s obligation below the minimum rent (plus tax increases, if any).
There was, therefore, no .refund due to the defendant lessee for the first year, and the trial court correctly entered judgment for the plaintiff-lessor.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Foth, C.:
The issue in this case is whether the equalization of firemens salaries with those of policemen is a proper subject of an initiative petition. The trial court held it was not, and the proponents of an equalization ordinance have appealed.
The initiative statute, K. S. A. 12-3013, provides a procedure whereby a city’s electors may initiate by petition any proposed ordinance “except an administrative ordinance” (and except certain other types of ordinance not relevant here). A petition meeting the statutory requirements as to form was submitted to the city commission of the city of Lawrence on June 12, 1973, by the appellant John W. McArdle. He was acting on behalf of himself, other members of a local firefighters’ union, and other signers of the petition. The next step under the statute would have been for the city clerk to verify the signatures for genuineness and for the qualifications of the signers as electors, and to determine whether their number was equal to at least 25% of the electors who had voted in the last city election. If so, upon certification of those facts to the city commission it would have been the duty of that body to either pass the ordinance without alteration, or to call a special election to be held within ninety days and submit it to the electors.
The commission, however, believed that the proposed ordinance was “administrative” in nature and hence not a proper subject for the initiative process. Rather than embark on the verification process the city brought this action for a declaratory judgment, naming McArdle as defendant to represent those who had signed the petition.
McArdle answered, alleging that the proposed ordinance was a valid initiative ordinance and joining in the prayer for a declaratory judgment. The parties stipulated to the relevant facts, basically adding to those recited above only that “[pjolice personnel presently receive higher wages than fire personnel of corresponding rank.”
The proposed ordinance is as follows:
“Section I.
There is hereby established a pay classification plan for employees of the Police Department and Fire Department of the City of Lawrence, Kansas, which shall be a separate classification from other employees of the City of Lawrence and shall be known as the Police and Fire Department Pay Schedule. Such pay classification shall be as follows, to-wit:
“Section II.
The City Commission shall tions above set forth. establish the pay scale for each of the classifica-
“Section III.
All personnel of the Police Department or the Fire Department of the City of Lawrence shall receive a monthly wage within the scale applicable to such person’s classification.
“Section IV.
The classification herein set forth shall be retroactive to January 16, 1973.”
The case was submitted on the pleadings, stipulation and ordinance, and the trial court rendered the following memorandum decision:
“Memorandum of Decision
(Filed September 10, 1973)
“This is an action for a declaratory judgment to determine if the proposed ordinance attached to Plaintiff's petition is legislative, and subject to initiative procedure as set out in K. S. A. 12-3013, or administrative and thus excepted from such procedure.
“The proposed ordinance establishes a pay classification plan for employees of the police and fire departments of the City of Lawrence, Kansas, ‘which shall be a separate classification from other employees of the City of Lawrence and shall be known as the Police and Fire Department Pay Schedule.’ The plan divides fire and police department employees into six classes for pay pur poses. The sixth classification (Class F) consists of patrolman, firefighter and DPS officer. The ordinance after the position of DPS officer contains in parentheses '(16 men)’. The meaning of the parenthetical expression '(16 men)’ was not a part of the stipulated facts submitted by the parties, nor was evidence presented thereon. Counsel for defendant indicated during argument on the briefs, that said expression was thought to have reference to a limitation on the number of DPS officers to be employed by the City. Whether the limitation was a maximum or minimum one was not determined.
"Section II of the proposed ordinance provides that the city commission shall establish pay scales for each classification. Section III provides that fire and police department employees shall receive a monthly wage within the pay scale applicable to the employee’s classification. Section IV makes the classification plan retroactive to January 16, 1973.
"An agreed statement of facts and an agreed statement of the legal issue involved was submitted by the parties. The sole question for determination is whether the proposed ordinance is administrative or legislative in nature.
"1. The City of Lawrence operates under the City Manager Plan of government. The City Manager is chosen solely on the basis of his administrative ability and is responsible for the appointment and removal of heads of departments and subordinate officers and employees. The city manager establishes the administrative divisions of the city, and the city commission reviews annually the administrative organization of the city and approves or disapproves the divisions and staff positions. K. S. A. 12-1014, 1015, 1024; Code of the City of Lawrence, 1973 1-201 to 1-302. The city manager is responsible for the administration of all city affairs, which would clearly include personnel matters. Piper v. City of Wichita 174 Kan. 590 at 597.
“2. The Kansas Supreme Court, although having never dealt with an ordinance like the one in question, has adopted the following tests to determine an ordinance legislative in nature: 1) does the proposed law make new policy or plan rather than to execute one already in existence, Lewis v. City of South Hutchinson, 162 Kan. 104; 174 P. 2d 51; 2) does the proposed ordinance state a declaration of public purpose and make provision for ways and means to accomplish it, State, ex rel v. Charles, 136 Kan. 875, 18 P. 2d 149. Taking into consideration the cited Kansas statutes and cases, the following general statement of law contained in 42 Am Jur 2d, Initiative and Referendum, 661, would be applicable in Kansas: 'Personnel administration is primarily an administrative matter, but when an ordinance affecting personnel amounts to a statement of policy, it is a legislative measure subject to initiative and referendum.’
“3. The proposed ordinance, by its terms, sets up a separate classification for fire and police department personnel from all other city personnel. It thus does not affect all personnel of the city.
“Since police personnel presently receive higher wages than fire personnel of corresponding rank, its retroactive provision would require an additional public expenditure. It does not consider money resources available, tax potential or hmitations. It makes no provision for ways and means to obtain money to fund the additional expenditure.
“4. If the proposed ordinance is legislative then the electorate could, in piece-meal fashion, initiate pay classifications for other segregated portions of the city personnel. Such action would be prescribing details for the execution of an overall plan or policy already in existence.
“5. Applying the ‘new policy or plan test’ to a similar ordinance, the Kentucky court in City of Newport v. Gugel, 342 SW 2d 521 (1960) stated:
“ ‘. . . we think it is clear that the ordinance here in question did not prescribe a “new policy or plan”. While an overall, comprehensive plan or policy for personnel administration of the city government, giving consideration to such factors as the money resources available, the tax potential and its limitations and the requirements of a unified budget, would be legislative in character, the same cannot be said of an ordinance that deals only with a segregated portion of the administrative personnel and with a part of the administrative problems, and merely prescribe details within the framework of a previously adopted general plan. Personnel administration is primarily an administrative matter, at least as far as concerns the details of management. To permit the electorate to initiate piece-meal measures affecting the fiscal affairs of the city without regard for the overall fiscal program, or measures not embodying a basic plan or policy for the entire area of government activity upon which the measure touches, could result in destruction of the efficient administration of the affairs of the city, and we do not believe the initiative statute so intends.’
“6. Although there is a division of authority on this question; e. g. the annotation in 122 ALR 769 and Glass v. Smith (Texas) 244 SW2d 645, it is the Court’s opinion that the law as stated in the Kentucky decision is better reasoned and more applicable to the situation in Kansas, under the city manager plan, and is consistent with the Kansas case law cited.
“The Court, therefore, makes the following conclusions of law:
“1. Declaratory judgment is an appropriate remedy for determination of the issue involved herein. K. S. A. 60-1701.
“2. The proposed ordinance does not constitute an overall, comprehensive policy for personnel administration of the city government.
“Instead of making a new law or policy, the ordinance deals only with a segregated portion of the administrative personnel and with part of the administrative problems, and merely prescribes details within the framework of a previously adopted general plan, and is administrative in nature.
“3. Being administrative in nature, the proposed ordinance is not subject to initiative and referendum as provided by K. S. A. 12-3013.”
It is from the judgment rendered on these findings that McArdle has appealed.
We agree with the trial court’s conclusions, basically for the reasons set forth in its well-reasoned memorandum decision. However, because of the importance of the issue we believe some further amplification is appropriate.
As the trial court observed, this court has not previously dealt with a salary ordinance under our initiative and referendum law. We have, however, had occasion to consider the “legislative” versus “administrative” dichotomy in a number of cases under the predecessors of the present statute.
One of the earliest, State, ex rel., v. City of Kingman, 123 Kan. 207, 254 Pac. 397, dealt with a statute which made any ordinance subject to protest and referendum except those containing a statement of “emergency.” While the statute made no exception for administrative ordinances the court nevertheless had no doubt that “the ordinances to which the referendum statute is intended to apply are those which are legislative in their character” (p. 209). Although the case was not decided on that ground, the court took the occasion to say that the paving ordinance in question there was “more properly describable as administrative” (p. 210). It was in that case that the court first observed that “The tendency seems to be to confine the operation of similar referendum statutes with a considerable degree of strictness to measures which are quite clearly and fully legislative and not principally executive or administrative.” (P. 209. Emphasis added.)
In State, ex rel., v. Morton, 128 Kan. 125, 276 Pac. 62, the location within the city of a connecting link of the state highway system was held to be an “administrative” decision, and therefore not subject to the initiative. On the other hand, whether or not a particular street should be widened, and land condemned for that purpose, was a legislative question and subject to referendum in State, ex rel., v. Jacobs, 135 Kan. 513, 11 P. 2d 739.
Whether a city should provide gas to its inhabitants through contracting with a private utility, or by building its own plant to be financed by a bond issue, was held to be a legislative question and subject to initiative and referendum in State, ex rel., v. Charles, 136 Kan. 875, 18 P. 2d 149. Relying on the three prior cases cited above, the court found that “It is well settled that -under the statute only legislative questions can be referred to a vote of the people.” (P. 877.) The court in that case quoted approvingly from 43 C. J. 585:
“Acts constituting a declaration of public purpose and making provisions for ways and means of its accomplishment may be generally classified as calling for the exercise of legislative power.” (P. 877.)
Another utility question was presented in Lewis v. City of South Hutchinson, 162 Kan. 104, 174 P. 2d 51. There the electors had approved the building of a municipal water system at a bond election. An initiative ordinance was proposed which would limit
the city’s authority to proceed until plans and specifications were made available for public inspection and the city was assured that materials would be available so that construction could start within sixty days and proceed without interruption. This, it was held, was an administrative ordinance, dealing only with ways and means of carrying out a policy already agreed upon, i. e., that the city should have its own water system. In so holding the court set forth the concept that “One crucial test for determining that an ordinance is administrative or legislative is whether the ordinance is one making a new law or one executing a law already in existence.” (Syl. ¶ 10.) The court reiterated the “strict construction” philosophy espoused in State, ex rel., v. City of Kingman, supra, and went on to note that the provisions of the proposed ordinance were not “general and permanent in character but are to apply only in connection with the issuance of certain bonds and the construction of a particular public improvement.” (P. 128.)
Finally, in State, ex rel., v. Salome, 167 Kan. 766, 208 P. 2d 198, the selection of a specific plan for implementing a flood control project previously declared necessary was held administrative, and not subject to initiative and referendum.
As may be seen, our previous cases do little to answer the present question beyond establishing the general principles noted by the trial court, which come down to the proposition that a legislative ordinance establishes new policy, while an administrative ordinance carries out existing policy. To this we might add the “legislative” characteristics of permanence and generality of application noted in Lewis v. City of South Hutchinson, supra, and the rule of strict construction or narrow application to measures “quite clearly and fully legislative,” first oberved in State, ex rel., v. City of Kingman, supra, and adhered to in Lewis.
Cases from other jurisdictions offer no clear guidelines for classifying salary ordinances, as was noted by the court below. The Kentucky court, in the case relied on by the trial court, observed that “The courts of other jurisdictions are sharply divided on the question. See Annotation, 122 A. L. R. 769, and supplemental decisions. It appears that Illinois, Iowa, Georgia, Ohio and Utah have held that ordinances of this kind are administrative and thus not within the intiative power, while Texas, South Dakota, Washington, Missouri and Alabama take the opposite view. California courts have gone both ways.” (City of Newport v. Gugel, [Ky., 1960] 342 S. W. 2d 517, 520.) It took the position that a “piece-meal” approach to the fiscal and personnel problems of a city was more administrative than legislative, and not subject to that state’s initiative statute. It later used the same rationale to hold that a proposed ordinance repealing a city occupation tax was not subject to initiative in Batten v. Hambley, (Ky., 1966) 400 S. W. 2d 683. Such an attack on the city’s revenue, made without consideration of the overall needs of the city, might lead to fiscal paralysis.
The Texas case, Glass v. Smith, 150 Tex. 632, 244 S. W. 2d 645, (1952), cited and rejected by the court below, is illustrative of those taking the other tack. The Texas court noted that that state’s legislature had expressly provided that classification within police and fire departments be done by ordinance of the city council, rather than by administrative action of the city’s civil service commission. Had the legislature chosen the latter course, the court said, such action might have served to withdraw the subject from the operative field of the initiative. Since it did not, the court found the whole area of classification and salaries to be within the traditional province of the legislative branch. The court’s holding was consistent with its earlier position that initiative and referendum provisions in city charters represented powers “reserved to the people,” and that “such charter provisions should be liberally construed in favor of the power reserved.” (Taxpayers’ Assn. v. City of Houston, 129 Tex. 627, 632, 105 S. W. 2d 655.) Our own philosophy, as noted above, has been to the contrary.
A discussion of the arguments on both sides of the issue appears in Shriver v. Bench, 6 Utah 2d 329, 313 P. 2d 475 (1957). Summarizing the arguments found in the cases supporting the view that the fixing of salaries is a legislative function, the court found them to be: that a liberal view of powers reserved to the people is consonant with the ideal of a democratic society; that the legislature always has an overriding power to fix salaries, even if it has delegated that authority to an administrative agency; that proper salaries are so intimately connected with efficient public service as to be a matter of basic public policy; and that the question must be legislative because so much time of a city council is devoted to it.
The primary argument on the other side was said to be that ‘legislative” actions are of a permanent character, while salaries are necessarily subject to frequent re-examination (even when tied to the consumer price index, as in that case). The court went on to say:
“Another consideration, the ‘practicality test’ supports the administrative view point. The fixing of salary schedules in a modern city with its numerous departments and various classes of employees is a duty which can best be performed by persons having specialized training and experience in municipal government generally and particular knowledge of the affairs, fiscal and otherwise, of the city. They must be conversant with many facts, such as: prevailing wage scales for similar services both in public service and private industry; the supply and demand for labor of the classes involved; the demands of the various departments upon the public treasury and the balance to be maintained among them; the current inflationary or deflationary trend of money; the extent of the public debt; the money resources available; the tax potential and its limitations; and the overall budget within which the city is required by law to operate.
“It can readily be seen from the foregoing that analyzing the factors which should be taken into consideration in fixing salaries, together with other considerations which must be weighted in individual cases, presents a problem of such complexity that it is not practical for the public to give it sufficient time and attention to malee a proper determination of the matter, and further, that the changes which are continually occurring malee it highly desirable that there be some expeditious method of re-examining the situation at frequent intervals. This points to the conclusion that it is much simpler, easier, and comports more with reason and the practical exigencies of the operation of city government that the salaries be adjusted by the administrative procedure set up in the charter. This is one of the bases of reasoning relied on by the courts in passing on whether a proposed action is legislative or administrative. If the result would be to impair the efficient administration of the municipality; the courts tend toward the conclusion that initiative and referendum provisions are not applicable.” (Id., p. 333. Emphasis added.)
The Utah court went on to observe that in the case before it the fixing of salaries was in practice an administrative matter, being handled under civil service by a personnel department operating under a city manager. He, as chief administrator, was responsible to the council, who in turn must account to the electors. Thus ultimate control was retained by the people, but was to be exercised through the ballot box rather than the initiative.
The matter obviously is not without difficulty, but on the whole we are more inclined toward the views of the Kentucky court (which persuaded the court below) and of the Utah court. Unlike the Texas court we have never adopted a “liberal” view of the matters which should be subject to initiative and referendum, but quite the contrary. State, ex rel., v. City of Kingman, supra; Lewis v. City of South Hutchinson, supra. Although not fully articulated in those cases, the “practicality test” referred to by the Utah court may be seen running through our cases. The administrative details of locating highways or carrying out complex flood control projects are simply not proper subjects for the uninitiated electors to determine.
In the case at bar, personnel matters are handled in practice on an administrative basis by the city manager who is selected for his expertise in such matters. K. S. A. 12-1012. The proposed ordinance says in effect that firemen shall receive the same pay as policemen of equal rank and seniority. While at first blush this might appear to be a matter of “basic public policy,” it is also apparent that to determine intelligently whether this policy should be adopted would require familiarity with all the considerations recited by the Utah court, quoted above. While the proposed ordinance does not actually fix salaries, it does impinge heavily on the efficient operation of the city’s affairs and its fiscal integrity, even without regard to its retroactive feature.
To illustrate: we were told in oral argument that even under the present pay differential favoring policemen the city of Lawrence receives many more applications for its fire department than its police department. Whether this is so or not need not concern this court; it must, however, concern those responsible for fixing relative pay scales and determining whether or not they should be equal. Such non-pecuniary matters as hours, working conditions and physical risks obviously play a role in determining the desirability of any job. How much those factors should be weighed against monetary rewards is a question more properly determined by administrators with experience and knowledge in the field, than by a public with little knowledge and less interest.
Finally, we agree with the trial court, and the Kentucky decision on which it relied, that a piece-meal approach to the city’s affairs cannot be tolerated. “Equal pay” has a fine ring to it, and an emotional appeal which may easily be caught up and applied by other groups. We do not mean to suggest that there may not be merit to any such application, but only that we are in the same shoes as the electorate in that we are too uninformed to make a rational decision on the issue. No group of employees can be considered in isolation, without regard to the city’s overall financial picture. A proposition as to any is subject to acceptance or rejection by the electorate on an emotional basis which may well fail to account for either the merits of the individual proposition or the long-run public good.
For the foregoing reasons we concur in the trial court’s conclusions and its judgment is affirmed.
APPROVED BY THE COURT.
Fatzer, C. J., dissents, being of the opinion the ordinance in question is legislative in nature and subject to the initiative statute. (K. S. A. 12-3013.)
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The opinion of the court was delivered by
Fatzer, C. J.:
This appeal involves the constitutionality of legislation commonly known as the Kansas No-Fault Insurance Act.
In 1973, the Kansas Legislature enacted Substitute for House Bill 1129 which is published as Chapter 198 of the 1973 Session Laws (L. 1973, Ch. 198), and is incorporated in the Kansas Statutes Annotated as K. S. A. 40-3101 through 40-3121. The Act was defined by Section 1 as the “Kansas Automobile Injury Reparations Act” and became effective January 1, 1974. Because of the posture of this case on appeal and events which occurred subsequent to the judgment below, it is deemed necessary to set forth in detail those events and the issues which have arisen as result of their occurrence.
In September 1973, the plaintiff, F. G. Manzanares, a resident of the state of Kansas and the owner of an insured motor vehicle, commenced this action in the district court against W. Fletcher Bell, as Commissioner of Insurance, James T. McDonald, as Secretary of Revenue, and Elton D. Lobban, as Director of Vehicles. The plaintiff filed the action individually and on behalf of all motor vehicle owners and operators in Kansas. (K. S. A. 1973 Supp. 60-223.) His first amended petition alleged the unconstitutionality of Substitute for House Bill 1129 upon several grounds and prayed judgment declaring the Act unconstitutional, and for an order permanently enjoining the defendant state officials from implementing and enforcing the terms and conditions of tire Act. (K. S. A. 60-907.) He also sought declaratory relief pursuant to K. S. A. 60-1701.
On October 5, 1973, Elizabeth Madden, a resident of Kansas and the owner of an insured motor vehicle, intervened and prayed for relief similar to that sought by the plaintiff. Her intervening petition was filed as a class action. (K. S. A. 1973 Supp. 60-223.)
Evidence was heard, and on January 4, 1974, the district court found Substitute for House Bill 1129 unconstitutional upon the grounds that (1) the title of the Act was defective because it made no mention of first party coverage and violated Article 2, Section 16 of the Kansas Constitution; (2) Section 13 (a) was invalid because its language required the injured party to repay his insurer all damages recovered from a negligent tort-feasor, and (3) Section 17 was invalid as ambiguous and accorded dissimilar treatment to injured persons depending upon whether the tort-feasor was insured as required by the Act in violation of the due process and equal protection clauses of the federal and state Constitutions. The district court announced it would file a memorandum decision and journal entry at a later date, and that its judgment would not be effective until the journal entry was filed. (K. S. A. 60-258.)
On January 24, 1974, the district court filed its memorandum opinion and journal entry and ordered that its judgment be stayed until February 7, 1974. This appeal was immediately perfected. On January 25, 1974, Senate Bill 918 was introduced in the Kansas Legislature to correct the constitutional infirmities of Substitute for House Bill 1129 as determined by the district court, and to repeal that Act in its entirety. Upon application of the defendants, this court stayed the judgment of the district court “until the decision of this court becomes final or until further order of this court,” and granted the appeal a preferential setting. It was further ordered:
“In the event the legislation in question is amended by the 1974 legislature, the parties are directed to brief the effect, if any, such amendments should have on the decision of this court.”
Senate Bill 918 passed the House and Senate by substantial majorities. It was signed by the governor on February 19, 1974, and became effective upon publication in the official state paper February 22, 1974. Thus, Senate Bill 918 became the effective no-fault law of Kansas on that date, repealing K. S. A. 40-3101 et seq., although the latter statutes were applicable no-fault law from January 1, until February 22, 1974 — a period of 53 days.
The appeal now before the court comes to us in a unique manner. Substitute for House Bill 1129, which was before the court below, and by that court held unconstitutional for the defects previously indicated, no longer exists as the law of the state of Kansas. During the pendency of this appeal the Legislature repealed Substitute for House Bill 1129 and enacted Senate Bill 918 in its stead. Since this is a proceeding for an injunction against state officials, and the judgment of this court must operate in futuro, it would be a futile act to enjoin state officials from enforcing a law which no longer exists.
The posture of this appeal is not without precedent. In Ash v. Gibson, 145 Kan. 825, 67 P. 2d 1101, the city of Ottawa adopted an ordinance restricting gasoline transports from hauling loads of more than 600 gallons on city streets. An action was brought to enjoin the enforcement of the ordinance. The lower court found the ordinance was invalid and enjoined its enforcement. Reversing, this court held the city had authority to adopt the ordinance. A motion for rehearing was filed, but prior to argument, a statute was enacted which withdrew the city’s authority to adopt the ordinance. One question presented on rehearing was whether this court should consider the effect of a statute which was not in force when the lower court entered judgment. We held the injunctive relief sought operated in futuro and therefore required this court to consider the effect of the statute passed during the pendency of the appeal. In the opinion on rehearing, Ash v. Gibson, 146 Kan. 756, 74 P. 2d 136, it was said:
“. . . The entire matter is still in the hands of this court and but little would be gained should we take the position that we would consider only such statutes as were in effect when the trial court entered its judgment, or as were in effect when this court filed its first opinion. The only practical result would be that a new action would be filed immediately, and the trial court would take such action at the trial, and this court would take such action on appeal, as we are asked to do now, that is, consider the effect of the enactment of chapter 283 of the Laws of 1937 on the power of the city to enact the ordinance in question.” (1. c. 758.)
A similar point was presented in Dairy Belle, Inc. v. Freeland, 175 Kan. 344, 264 P. 2d 894. The questions involved were the construction and the constitutionality of G. S. 1949, 65-720 and 721 — the “Ice Milk” statutes. During the pendency of the appeal, the Legislature enacted additional laws dealing with the same subject matter as the challenged statutes. We directed that counsel submit briefs and arguments on the effect to be given the new law. In the opinion it was said:
“. . . Although our order of May 14, 1953, ordered argument on the effect to be given chapter 8, Laws of 1953 [the new law], counsel have argued also the question of the constitutionality of that chapter. We shall consider both questions. . . .” (1. c. 345.)
At this juncture we note that Senate Bill 918 repealed the 21 sections of K. S. A. 40-3101 et seq. (the original Kansas No-Fault Act), reinacted 16 seotions without change, and altered the remaining five sections as indicated below:
(1) Section 5 changed K. S. A. 40-3105 (d), (e) and (/) to eliminate the exemptions provided commercial and non-resident motor vehicles.
(2) Section 6 changed K. S. A. 40-3106 making the Kansas No-Fault law applicable to all non-resident motor vehicle owners, and requiring that every insurance company, as a condition to transacting business in this state, provide insurance to its policyholders complying with the Kansas Act, wherever located.
(3) Section 13 (a) changed K. S. A. 40-3113 (a) to require an injured person repay his insurance carrier duplicative PIP benefits recovered from the tort-feasor.
(4) Section 16 changed K. S. A. 40-3116 to provide assigned claim plan benefits to all persons injured in this state, except the operator of a motorcycle for which the owner has rejected PIP benefits pursuant to Section 7 (/) and eliminated the requirement that assigned claim benefits be reduced by collateral benefits the injured person was entitled to receive.
(5) Section 17 changed K. S. A. 40-3117 (a) by removing the tort “shield" provision and now permits recovery from the tortfeasor for all economic losses, but still required the injured person incur reasonable medical expenses in excess of $500, or suffer one of the described specified injuries before recovering non-pecuniary losses. Section 17 retains the “threshold" provision.
Although the law in question has been changed by the enactment of Senate Bill 918, it is clear the basic issues remain the same. Those issues are of the utmost public importance and the parties claim the essential constitutional defects are the same in the new act as in the old. When those issues are bared, what is really involved is the constitutionality of the basic no-fault insurance concept with its built-in limitations on causes of action in tort arising out of injuries received in automobile accidents. That issue still exists between the parties and will continue to exist, even though it be determined that Senate Bill 918 corrected those matters thought by the district court to be constitutionally defective. This court is of the opinion that the public interest would be served if the court now considers the effect of Senate Bill 918 and resolves the constitutional questions at this time. Otherwise, as we previously observed in Ash v. Gibson, supra, “the only practical result would be that a new action would be filed immediately, and the trial court would take such action in the trial, and this court would take such action on appeal, as we are asked to do now. . .
Accordingly, we shall consider the constitutionality of basic no-fault concepts.
The main thrust of the arguments advanced are directed at specific sections of the no-fault legislation. Those sections alter traditional tort liability reparation and may be considered the distinguishing characteristics of the no-fault insurance legislation. Hence, we deem it advisable to summarize its basic features. In doing so, we shall not undertake a comprehensive discussion of Senate Bill 918, or its scope and operation.
Hereafter all reference pertaining to sections of the Kansas No-Fault Act is to Senate Bill 918 unless otherwise indicated.
The liability insurance prescribed by the no-fault legislation is mandatory, and the coverage afforded is extensive. Stated in summary fashion, Section 4 requires every motor vehicle owner to purchase liability insurance as specified by the Act. The operation of a motor vehicle on a highway of this state or property open to public use is prohibited, unless the prescribed liability insurance coverage is in force. Provision is made for self-insurance by those who qualify.
The liability insurance coverage required in every policy is set out in Section 7. Section 7 (e) prescribes policy limitations and provides for a minimum coverage of not less than $15,000 for bodily injury or death of one person in an accident, and not less than $30,000 for bodily injury or death of two persons in an accident. Minimum coverage of not less than $5,000 for property damage is required.
Section 7 (f) requires that every liability insurance policy shall contain personal injury protection benefits. The section’s phrase “include personal injury protection benefits” merges traditional third party liability insurance with first party coverage. The term “personal injury protection benefits” (hereafter PIP benefits) embraces six types of coverage, which include payment of the following allowances:
(1) Disability benefits — ‘loss of monthly earnings” due to an injured person’s inability to- engage in gainful employment and is limited to $650 per month for one year. (Sec. 3 [&].)
(2) Funeral benefits — burial or cremation, and limited to $1,000 per individual. (Sec. 3 [d].)
(3) Medical benefits — all reasonable medical expenses, and limited to $2,000 per person. (Sec. 3 [7c].)
(4) Rehabilitation benefits — psychiatric services, occupational therapy or occupational training or retraining. (Sec. 3 [?’].)
(5) Substitution benefits — hiring a person to render services the injured person normally perfoims. (Sec. 3 [«>].)
(6) Survivor benefits — affords a decedent’s survivor or survivors disability and substitution benefits. (Sec. 3 [y\.)
Direct benefits are provided to the named insured, members of his family residing in his household, guest passengers, and others operating the insured motor vehicle with permission, and to pedestrians struck by the insured vehicle. Those persons are entitled to payment of medical expenses, reimbursement of lost wages, and other benefits subject to the limitations noted. Payment of PIP benefits must be made within 30 days by the insuring company regardless of fault in the causation of the injury. Moreover, Section 16 creates an assigned claims plan whereby any person who suffers an injury in this state arising out of a motor vehicle accident may receive PIP benefits if such benefits are not otherwise available to the injured person under the conditions specified in the section.
In exchange for the PIP benefits provided by Section 7, the injured person’s right to recovery in tort is tempered by the “threshold” provision of Section 17. That section permits recovery of damages-for pain, suffering, inconvenience or other non-pecuniary loss only when the reasonable value of medical services for the injury is $500 or more. Recognizing that certain injuries entail considerable pain and suffering warranting monetary compensation regardless of medical expenses incurred, the Legislature provided by way of exception to the foregoing limitation that damages for pain and suffering could be sought in all cases involving specified injuries. Those injuries must consist in whole or in part of permanent disfigurement, fracture to a weight bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of bodily function or death. Any person whose injuries are not within the specified categories or whose medical expenses are less than $500 cannot recover for non-pecuniary loss such as pain, suffering, mental anguish or inconvenience.
We do not wish to be understood in the foregoing discussion as ruling on the operative effect of any part of Senate Bill 918, but we summarize its pertinent provisions only to permit a better understanding of that which follows.
We begin our consideration of the numerous questions presented by examining two contentions advanced by the plaintiff which, if accepted, would change significantly our approach to the case. The plaintiff first contends the $500 medical threshold provision of Section 17 “takes away property rights without compensation” in violation of Section 18 of the Bill of Rights of the Constitution of the state of Kansas as well as the equal protection and due process clauses of the Fourteenth Amendment. In arguing the point, the plaintiff questions the Legislature’s authority to alter traditional tort liability concepts, and in so doing, he ignores the distinction between an accrued and expeoted cause of action.
Traditionally, the burden of reparation for losses occasioned by motor vehicle accidents has fallen upon the party or parties found to be at fault. See e. g. McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468; Watkins v. Byrnes, 117 Kan. 172, 230 Pac. 1048; Strohmyer v. Ventura, 178 Kan. 597, 290 P. 2d 1001; Morris v. Hoesch, 204 Kan. 735, 466 P. 2d 272; VonWolff v. Sewell, 211 Kan. 215, 505 P. 2d 687; Beardsley, Executor v. Weber, 213 Kan. 427, 516 P. 2d 936.) The Kansas No-Fault Act represents a legislative departure from common-law fault reparation procedures. This change flows from the compulsory first party coverage (Sec. 7 [/]), and the threshold provision which limits recovery for non-pecuniary losses. (Sec. 17.)
Seotion 18 of our Rill of Rights provides:
"All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
The Fourteenth Amendment to the United States Constitution and Section 18 of the Bill of Rights of the Kansas Constitution do not forbid the creation of new rights, or the abolition of rights recognized by the common law. (Wright v. Pizel, 168 Kan. 493, 214 P. 2d 328; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Silver v. Silver, 280 U. S. 117, 74 L. Ed. 221, 50 S. Ct. 57.) In Williams v. City of Wichita, 190 Kan. 317, 374 P. 2d 578, we said:
“. . . From the earliest days of Kansas history, flexibility in the common law has been carefully preserved (G. S. 1949, 77-109). Indeed, the great office of statutes is to remedy defects in the common law as they are developed and to adapt it to the changes of time and circumstances. That the legislature may change the principle of the common law and abrogate decisions made thereunder when in its opinion it is necessary to the public interest is well settled. (Citations.)” (l. c. 331, 332.)
In the recent case of Steele v. Latimer, 214 Kan. 329, 521 P. 2d 304, it was said:
“It has been said that the development of the common law has been determined largely by the social needs of the society it was designed to serve, and that the capacity for growth and change is one of its most significant features. (Linkins v. Protestant Episcopal Cathedral Found., 187 F. 2d 357, 28 A. L. R. 2d 521; Lembke v. Unke, 171 N. W. 2d 837 [N. Dak.]; 15 Am. Jur. 2d, Common Law, § 2, pp. 795, 796.) The most casual student of ages past would agree that the principle of change runs deeply through human history and like a golden thread weaves new ‘people requirements’ into the fabrics of altered social patterns.
“Even though the common law of England has provided the basics of the law in this state since territorial days (Hoffman v. Dautel, 192 Kan. 406, 414, 388 P. 2d 615), it is clear, by legislative pronouncement, that it may be modified ‘by constitutional and statutory law, judicial decisions, and the conditions and wants of the people.’ (Emphasis supplied.) (K. S. A. 77-109.)
“This court has never been disposed, as was announced in Wright v. Jenks, 124 Kan. 604, 609, 261 Pac. 840, ‘to resuscitate [the] obsolete subtlety of the common law.’ To the contrary, where a common law principle has been found unsuited to the conditions and wants of the people of this commonwealth, its application has been rejected. (Isely Lumber Co. v. Kitch, 123 Kan. 441, 445, 256 Pac. 133. . . .” (l. c. 332.)
While Section 18 of the Bill of Rights provides a broad field for the protection of persons, property and reputation, the vested rights contained therein are subject to change by legislative power, where the change is reasonably necessary in the public interest to promote the general welfare of the people of the state. We have never held one to have a vested right in the common-law rules governing negligence actions so as to preclude substituting a viable statutory remedy for common law causes of action. The decisions of this court are replete with instances of common-law rights being modified or abolished. (See e. g. Shade v. Cement Co., 93 Kan. 257, 144 Pac. 249 [workmen’s compensation]; State, ex rel., v. Knapp, 167 Kan. 546, 207 P. 2d 440 [riparian rights]; Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934 [charitable immunity]; Long v. Fischer, 210 Kan. 21, 499 P. 2d 1063 [alientation of affection]; Steele v. Latimer, supra [covenant of habitability].) The foregoing is not intended to be exhaustive.
The No-Fault Act before this court does not totally abolish the common-law right to damages for personal injury; nor does it abolish the right to recovery for actual economic loss. It does provide a limitation on the right to recover non-pecuniary losses for pain, suffering, mental anguish and inconvenience. The Act prospectively modifies the common-law tort liability concept, and in no manner retroactively affects accrued common-law rights of redress. There is a plethora of authority that “[N]o person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit.” (New York Central R. R. Co. v. White, 243 U. S. 188, 198, 61 L. Ed. 667, 37 S. Ct. 247.) Accordingly, a “citizen may find that events occurring after passage of such a statute place him in a different position legally from that which he would have occupied had they occurred before passage of the statute.” (Pinnick v. Cleary, 271 N. E. 2d 592, 599-600 [Mass. 1971].)
Moreover, the Kansas No-Fault Act assures all motor vehicle accident victims of prompt, efficient payment of certain economic losses. To the extent there is a limitation on a person’s ability to recover non-pecuniary damages, the rights received in exchange are no less adequate. (New York Central R. R. Co. v. White, supra; Arizona Employers’ Liability cases, 250 U. S. 400, 63 L. Ed. 1058, 39 S. Ct. 553; Helvering v. Davis, 301 U. S. 619, 81 L. Ed. 1307, 57 S. Ct. 904; Pinnick v. Cleary, supra; Opinion of the Justices, 304 A. 2d 881 [N. H. 1973]; Kluger v. White, 281 So. 2d 1 [Fla. 1973].) Such a person has no cause to complain solely because his rights are not now what they would have been had Senate Bill 918 not been enacted. (City of Wichita v. White, 205 Kan. 408, 469 P. 2d 287; Munn v. Illinois, supra; New York Central R. R. Co. v. White, supra.)
The plaintiff argues at length that the No-Fault Act requiring a motor vehicle owner to purchase liability insurance containing first party coverage (PIP) benefits places an unwarranted burden on the right to travel freely. He contends that since the right to travel is a fundamental right, this court is required to apply the “compelling state interest” test and not the “reasonable relation” test in determining the act’s constitutionality. He asserts the right to travel in Kansas in 1974 is tantamount to the right to travel by private automobile, and the Act places an unwarranted burden on that right where no compelling state interest has been shown to exist. The point is not well taken.
We agree that freedom to travel throughout this state and this nation is a fundamental right. (Aptheker v. Secretary of State, 378 U. S. 500, 12 L. Ed. 2d 992, 84 S. Ct. 1659; Shapiro v. Thompson, 394 U. S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322; Dunn v. Blumstein, 405 U. S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995.) But that does not resolve the issue. Whether the “compelling state interest” test is applicable requires this court to consider the basis of the classification challenged, the interest affected by the legislation, and the governmental interest necessitating the classification. (Memorial Hospital v. Maricopa County _ U. S. _, 39 L. Ed. 2d 306, 94 S. Ct. 1076; Dunn v. Blumstein, supra; Kramer v. Union School District, 395 U. S. 621 23 L. Ed. 2d 583, 89 S. Ct. 1886; Skinner v. Oklahoma, 316 U. S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110.)
The basis of the legislative classification is the automobile, and the No-Fault Act affects alike all who own, operate, maintain or use such a vehicle. The interest affected by Senate Bill 918 is not the right to travel freely. What is required is motor vehicle liability and first party insurance as a condition precedent for the privilege of operating a motor vehicle upon the public highways of this state. While limitations upon the police power are not susceptible to precise definition, authorities are unanimous that under the police power the state may regulate travel upon the public highways. The right to operate a motor vehicle upon the public highway is a privilege, not a natural right, and that privilege is subject to rea sonable regulation. (Lee v. State, 187 Kan. 566, 358 P. 2d 765; Marbut v. Motor Vehicle Department, 194 Kan. 620, 400 P. 2d 982; Agee v. Kansas Highway Commission, 198 Kan. 173, 422 P. 2d 949; Popp v. Motor Vehicle Department, 211 Kan. 763, 508 P. 2d 991.) The power of the Legislature to control the operation of motor vehicles includes the power to enact legislation affecting the reciprocal rights and duties of all owners, operators or occupants when those rights and duties arise out of such operation. (Wright v. Pizel, supra.) Although our decision in Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362, declaring the Kansas guest statute unconstitutional, overruled Wright v. Pizel, supra, that decision was clearly on grounds other than legislative power.
The need to correct flaws inherent in the fault oriented reparation system has been the subject of spirited debate. (James & Law, Compensation for Auto Accident Victims: A Story of Too Little and Too Late, 26 Conn. B. J. 70 [1952]; Morris & Paul, The Financial Impact of Automobile Accidents, 110 U. Pa. L. Rev. 913 [1962]; Keeton & O’Connell, Basic Protection for the Traffic Victim [1965].) Seven major proposals for vehicle accident compensation reform have been advanced. Presently twenty of our sister states have considered or enacted legislation directed at reparation reform. (See: The INCL Brief, Nov. 1973, Vol. 3, No. 2, Section of Insurance, Negligence & Compensation Law, American Bar Association.) The enactment of the Kansas No-Fault Act culminated many years of studying the present tort liability insurance system and its inability to deliver promptly compensation to automobile accident victims. The Act is a legislative response to a growing public demand for a change in the manner society deals with the enormous legal, social and economic problems resulting from motor vehicle accidents. Every citizen of this state is affected by the carnage occasioned by motor vehicle accidents ocurring upon our highways. The state has an interest in protecting those who use the public highways and that interest is not limited to accident prevention. (City of Wichita v. White, supra.)
The Kansas No-Fault Act does not penalize a person’s right to travel freely. The governmental interest furthered by Senate Bill 918 justifies the compulsory liability and first party insurance coverage so as to insure prompt compensation to accident victims injured in the operation or use of a motor vehicle. Accordingly, there exists no reason for applying the “compelling state interest” test. Nor do we perceive any reason to conclude the Act is overly broad in the face of a less restrictive alternative which would achieve the same ends.
In view of the foregoing conclusion, we shall apply the “reasonable relation” test in determining whether Senate Bill 918 violates due process and equal protection principles.
In Henry v. Bauder, supra, we discussed those constitutional guaranties and said:
“. . . The equal protection clause of the Fourteenth amendment to the United States Constitution finds its counterpart in Sections 1 and 2 of the Bill' of Rights of the Kansas Constitution which declares in substance that ‘all men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness/ and that ‘all free governments . . . are instituted for the equal protection and benefit of the people/ While these two provisions of our Bill of Rights declare a political truth, they are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law. . . .” (l. c. 752.)
While the plaintiff and intervenor have commingled their arguments as to the due process and equal protection clauses, proper consideration requires us to discuss them separately.
Two arguments have been advanced by the parties regarding the infringement of Senate Bill 918 upon the constitutional guaranty of due process of law.
First, the plaintiff contends Sections 4 and 7 violate the due process guaranty by depriving motor vehicle owners the freedom of choosing for themselves the type and extent of insurance protection suited to their needs. He argues that premiums charged for the first party insurance coverage (PIP benefits) mandated by those two sections is a taking of property without due process of law. Second, the intervenor contends that various sections of the Act are vague and ambiguous violating the due process guaranty.
In determining whether a legislative scheme transgresses upon the guarantee of due process of the law, the applicable test is whether the legislation bears a “reasonable relation” to a permissible legislative objective. (City of Colby v. Hurtt, 212 Kan. 113, 509 P. 2d 1142; City of Lyons v. Suttle, 209 Kan. 735, 498 P. 2d 9; Pinkerton v. Schwiethale, 208 Kan. 596, 493 P. 2d 200.) The rules governing the supreme court in applying this test were considered in Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 877, wherein we stated:
“ ‘This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution; and every legislative act comes before this court surrounded with the presumption of constitutionality. That presumption continues until the Act under review clearly appears to contravene some provision of the Constitution. All doubts of invalidity must be resolved in favor of the law. It is not in our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; those are purely legislative matters. . . . While the legislature is vested with a wide discretion to determine for itself what is inimical to the public welfare which is fairly designed to protect the public against the evils which might otherwise occur, it cannot, under the guise of the police power, enact . . . legislation . . . which violates the Constitution. . . .” (l. c. 760.)
Moreover, if a state of facts could exist which would justify the legislation, it must be presumed to have existed when the legislation was adopted. (Munn v. Illinois, supra; McGowan v. Maryland, 366 U. S. 420, 426, 427, 6 L. Ed. 2d 393, 81 S. Ct. 1101.)
Does there exist a reasonable basis for requiring motor vehicle owners to carry PIP coverage? Plaintiff maintains none of the alleged evils exist in Kansas which have prompted the “rash” of no-fault legislation nationally. The argument is one of policy, not law. This court does not decide nor weigh the beneficial results flowing from any particular legislative policy. (Williams v. City of Wichita, 190 Kan. 317, 374 P. 2d 578.) We must presume that, in adopting the No-Fault Act, the Legislature intended to improve the fault oriented reparation system. Concern over the inability of the present tort liability insurance system to deliver compensation promptly is by no means a new issue. The belief that defects in the system could be remedied only by far-reaching legislative reforms has fermented for over 40 years. A major study in this area was published in 1932 by the Columbia University Council for Research in the Social Sciences. The committee concluded that:
“The generally prevailing system of providing damages for motor vehicle accidents is inadequate to meet existing conditions. It is based on the principle of liability for fault which is difficult to apply and often socially undesirable in its application; its administration through the courts is costly and slow, and it makes no provision to ensure the financial responsibility of those who are found to be hable.” (Report by the Committee to study compensation for automobile accidents. Philadelphia, Press of International Printing Co., 1932, p. 216.)
While the committee recognized that compulsory liability insurance and financial responsibility law would improve the then-existing system, it recommended far more sweeping changes, favoring a plan of compensation with limited liability and without regard to fault, analogous to that of the Workmen s Compensation laws.
Change was, as it always is, slow in coming. Many states attempted various legislative schemes such as compulsory insurance and financial responsibility laws to provide reparation for economic losses sustained by the crash victims. In 1965 a major study was made which is generally regarded as the foundation of most so-called “no-fault” legislation. (Keeton & O’Connell, Basic Protection For the Traffic Victim [1965].) In 1968, the United States Congress, in a joint resolution, called for a study and report by the United States Department of Transportation, and observed that:
“. . . [T]here is growing evidence that the existing system of compensation ... is inequitable, inadequate and insufficient and is unresponsive to existing social, economic and technological conditions. . . .”
“. . . There is needed a fundamental reevaluation of such system, including a review of the role and effectiveness of insurance and the existing law governing liability.” (Pub. L. 90-313, 82 Stat. 126.)
The directed study published in 1971 by the United States Department of Transportation (DOT), Motor Vehicle Crash Losses and their Compensation in the United States, reached the same conclusion. All studies concluded that the risk of tort liability based upon negligence is not a significant factor in inducing vehicle operators to drive more carefully; that the tort system of reparations based upon fault is excessively expensive and inefficient as a means of compensating automobile crash victims; that compensation distribution to accident victims under the tort system is inequitable in that it commonly results in overpayment for minor injuries, gross underpayment for those more seriously injured, and long delays in receipt of compensation.
In 1972 die Kansas Insurance Department, in a study entitled “No-Fault Automobile Insurance and its Role in Kansas” concluded that “. . . all the forces engaged in this controversy are in agreement that some changes in the automobile bodily injury insurance system are necessary. . . .” Without question there has been debate and controversy surrounding the enactment of the Kansas No-Fault Act. This is nothing new for change admits of controversy, and, generally speaking, diversity of opinion between those holding honest and sincere convictions follows. It cannot be denied there exists in this state a substantial and serious body of thought supporting the view that changes are required in the reparation system for automobile crash viotims.
That concern is the cornerstone of legislative action for compen sating motor vehicle accident viotims. Such concern has accompanied the rising predominance o£ the motor vehicle in our society, and is deeply imbedded in the legislative and judicial history of this state. As early as 1931, compulsory liability insurance for common carriers was required in this state. (L. 1931, Ch. 236, § 21.) New attempts to challenge that legislation were made, and in every case the legislative classification was held constitutional. (Louis v. Boynton, 53 F. 2d 471; Continental Baking Co. v. Woodring, 55 F. 2d 347, aff'd 286 U. S. 352, 76 L. Ed. 1155, 52 S. Ct. 595; Flowers v. Fidelity & Casualty Co., 156 F. 2d 586 [10th Cir. 1946].) In 1939 the growing concern over the number of uncompensated automobile accident victims found expression in the state’s first financial responsibility law. (L. 1939, Ch. 86.) However, that legislation affected only persons convicted of certain offenses or persons who faffed to satisfy a judgment arising out of a vehicle accident and required them to file proof of future financial responsibility. Failure to comply resulted in revocation of the person’s license. See: Megaffin, Motor Vehicle Financial Responsibility and Kindred Laws, 25 J.B.A.K. 242 (1957).
The inability of the financial responsibility law to accomplish the intended puipose resulted in the law being repealed and replaced by the Motor Vehicle Safety Responsibility Act. (Comment: The New Kansas Motor Vehicle Safety Responsibility Act, 6 Kan. L. Rev. 358 [1958].) The purpose of the Safety Responsibility Act was to afford members of the public protection from irresponsible drivers by requiring financial security from drivers and motor vehicle owners involved in vehicle accidents. (Agee v. Kansas Highway Commission, supra.) Again, in 1968 the Legislature spoke on the subject to further insure compensation was provided victims of automobile accidents; it required uninsured motorists coverage be offered in every automobile liability insurance policy for vehicles registered in tins state. (K. S. A. 40-284.) The obvious legislative purpose in mandating the offer of uninsured motorist coverage was to correct flaws in the safety responsibility Act. That coverage was designed to compensate innocent persons injured through the wrongful conduct of uninsured motorists who were unable to financially respond in damages. (Winner v. Ratzlaff, 211 Kan. 59, 505 P. 2d 606.) As remedial legislation, it was liberally construed to provide the intended protection. (Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 512 P. 2d 507, reh. den. 213 Kan. 84, 515 P. 2d 1115.) Senate Bill 918 repealed the Motor Vehicle Safety Responsibility Act and expresses again the legislative objective of correcting the inadequacies in compensating persons in the operation, maintenance and use of motor vehicles. The innovative scheme selected — no-fault insurance — requires a motor vehicle owner to carry self-protecting insurance.
This comí: addressed the issue of self-protecting legislation in City of Wichita v. White, supra. There, a constitutional challenge was made to an ordinance requiring the operator of a motorcycle or a passenger to wear protective headgear. The ordinance was worded in identical language to a state statute. The court considered the challenge present in that appeal “as one dealing with the state legislative enactment.” (1. c. 409.) The appellant contended self-protection legislation was beyond the police power of the state, and that it transgressed upon his constitutional rights without corresponding benefits accruing to the publics general welfare. Finding the contentions without merit, we said:
“. . . [Cjhoosing between available alternatives in promoting highway safety is for the legislature, not for the courts. If requiring helmets is a protection against motorcycle drivers being hit and distracted by flying objects, such requirements need not be the only, or even the best way to accomplish the purpose of preventing such distraction to make it a proper exercise of the police power of the state.
“Over and above the interest the state has in protecting other users of the highways from the dangers of involvement in an accident is the fact that other users of the highway have an interest in the seriousness of the conseqences of accidents as well as in the frequency of mishaps. Promoting highway safety is not to be limited to the prevention of accidents alone. It can include efforts to reduce the serious consequences of such accidents. . . .
“It is readily apparent that other motorists are affected by the' consequences of an accident, and that is the test. Therefore, the police power of the state may be exercised to minimize the consequences of collisions and accidents as well as to decrease the number of collisions and accidents.” (1. c. 412.) (Emphasis supplied.)
Tbe police power of the state embraces regulatory authority designed to promote the health, safety and welfare of the public. (State v. Atkin, 64 Kan. 174, 67 Pac. 519, aff'd 191 U. S. 207, 48 L. Ed. 148, 24 S. Ct. 124; Hovis v. Refining Co., 95 Kan. 505, 148 Pac. 626; State v. Weathers, 205 Kan. 329, 469 P. 2d 292; State, ex rel., v. Koscot Interplanetary, Inc., 212 Kan. 668, 512 P. 2d 416; Reduction Company v. Sanitary Works, 199 U. S. 306, 50 L. Ed. 204, 26 S. Ct. 100; Bacon v. Walker, 204 U. S. 311, 51 L. Ed. 499, 27 S. Ct. 289; Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 58 L. Ed. 721, 34 S. Ct. 364; Nebbia v. New York, 291 U. S. 502, 78 L. Ed. 940, 54 S. Ct. 505.) It is axiomatic that if the police power of the state may be exercised to minimize the consequences of collisions and accidents, it likewise may be exercised to require a method of compensating promptly persons who suffer accidental bodily injury arising out of a motor vehicle accident. The requirement of purchasing insurance for the protection of others has long been held not to violate the due process guarantee. In State v. Finley, 198 Kan. 585, 426 P. 2d 251, it was said:
“It seems clear the legislature may require, as a condition to the right of operating a motor vehicle, the procurement of insurance or the furnishing of other proof of financial responsibility. . . (l. c. 594.)
Further, in Henry v. Bauder, supra, we said:
“. . . [T]he modem trend is to make mandatory insurance coverage for all owners of motor vehicles. This is one of the basic concepts of no fault legislation which has been enacted or is being considered in practically every state in the nation today. . . .” (1. c. 761.)
In Pinnick v. Cleary, supra, a multilateral challenge was made against the Massachusetts no-fault insurance act. The plaintiff contended that by requiring him to insure himself against loss or injury through a private, profit making insurance company was a deprivation of due process of law. In reply, the court said:
“. . . Even if the self-insurance were compulsory, however, it would create no constitutional problems. Any doubts as to the power of the Legislature to require the citizen, for the good of the public as a whole, to take measures for his own benefit have long since been settled in a series of cases sustaining such statutes. The fact that in many of these cases this feature of the act was not even attacked indicates the lack of gravity of the objection.
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“Nor can the plaintiff complain because the medium through which the . . . self-protection must be obtained is a private, profit-making corporation, as opposed to some kind of govemmentally managed pool. . . . We see no distinction for due process purposes between the requirement of private insurance for self-protection and for the protection of others. It is an incidental and completely nonobjectionable concomitant of many regulatory statutes that citizens are required thereby to enter into transactions for their own benefit with private corporations. . . .” (271 N. E. 2d 592, 607, 608.)
No example of compulsory self-insurance could be clearer than old age and survivors’ insurance, the constitutionality of which long has been accepted. (Helvering v. Davis, supra.)
We observe that no complaint is made of Section 2 of Senate Bill 918 which declares “[t]he purpose of this act is to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability for damages to the extent provided herein.” This is the heart of the Act. The rest treats of deitals and procedures. The legislation forms the basis for a different approach in solving the inadequacies of the tort liability system, and provides a new method of affording prompt compensation to motor vehicle accident victims. Under the declaration of Section 2 and other provisions of the Act, we now approach reparation of motor vehicle accident victims on the basis of the interest of all the citizens of this state without losing sight of, but tempering, the right of an individual to pursue traditional remedies in tort. The change is an appropriate one for the Legislature to make. Individuals do not live alone in isolation where they, at their will, can assert all of their individual rights without regard to the effect upon others. (State, ex rel., v. Knapp, 167 Kan. 546, 207 P. 2d 440.)
It is evident the Legislature was concerned with the possible burden on society occasioned by inadequate or nonexistent compensation for economic loss suffered by motor vehicle accident victims, particularly when viewed in the context of the large number of persons and total financial loss involved. Ry requiring motor vehicle liability policies to include first party PIP benefits, the Legislature may have eliminated the former necessity of resorting to litigation in many cases. The requirement of PIP coverage bears a reasonable relation to the subject of reparation for losses arising out of the ownership and operation of motor vehicles. Hence, the Kansas no-fault insurance plan being reasonably directed toward problems that affect the public welfare, including the economic welfare of the state and its citizens, the Act represents a proper and legitimate exercise of the police power of the state.
As indicated, the second due process challenge is that various sections of the No-Fault Act are vague and ambiguous. Discussion is limited to three penal sanctions. A criminal penalty is prescribed for the owner of an uninsured motor vehicle if he allows the uninsured vehicle to be operated upon a public highway or property open to use by the public. Likewise, any person who knowingly drives an uninsured motor vehicle is subject to criminal liability. (Sec. 4 [e].)
A motor vehicle owner is subject to a criminal penalty when his vehicle registration is revoked and thereafter he fails to surrender to the Director of Vehicles his registration receipt or license plate. Revocation can occur only after a hearing. (Sec. 18 [d].) Any owner of a motor vehicle registered or required to be registered in this state who falsely certifies his financial security is subject to criminal liability. (Sec. 18 [g].)
We find it unnecessary to discuss at length this challenge. It is sufficient to say the three penal sanctions are not objectionable. The language in each section conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. (State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 A. L. R. 2d 750; State v. Gunzelman, 210 Kan. 481, 502 P. 2d 705; State v. Finley, 199 Kan. 615, 433 P. 2d 414; State, ex rel., v. Fleming Co., 184 Kan. 674, 339 P. 2d 12; State v. Ashton, 175 Kan. 164, 262 P. 2d 123; Grayned v. City of Rockford, 408 U. S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294; United States v. Harriss, 347 U. S. 612, 98 L. Ed. 989, 74 S. Ct. 808.)
The plaintiff and intervenor have advanced several arguments premised upon a denial of equal protection of the law. Traditionally, the test utilized in determining if a legislative enactment violates equal protection principles is whether the classification bears a rational relation to tiie purpose of the legislation. (Henry v. Bauder, supra; Pinkerton v. Schwiethale, supra; State v. Consumers Warehouse Market, 183 Kan. 502, 329 P. 2d 638; McDonald v. Board of Election, 394 U. S. 802, 22 L. Ed. 2d 739, 89 S. Ct. 1404.) The Legislature is presumed to act within its constitutional power despite the fact the application of its laws may result in some inequity. (McGowan v. Maryland, 366 U. S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101.) The equal protection clause goes no further than to prohibit invidious discrimination. (Williamson v. Lee Optical, 348 U. S. 483, 99 L. Ed. 563, 75 S. Ct. 461.) In Reed v. Reed, 404 U. S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251, it was said:
“. . . [T]his Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U. S. 27 (1885), Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911); Railway Express Agency v. New York, 336 U. S. 106 (1949); McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920). . . .” (l. c. 75-76.)
The parties contend the threshold provision of Section 17 is an arbitrary classification violating Section 18 of the Bill of Rights to the Kansas Constitution and the equal protection clause of the Fourteenth Amendment. Apparently the parties consider that Section 18 of our Bill of Rights is the complement of the due process and equal protection clauses of the Fourteenth Amendment. In this they are in error. As previously indicated, the Kansas Constitution’s counterpart of the Fourteenth Amendment is Sections 1 and 2 of our Bill of Rights. (Henry v. Bauder, supra.) It is argued that the limitation on recovery of non-pecuniary loss for pain, suffering, mental anguish, and inconvenience invidiously discriminates between those persons injured by a motor vehicle and those who are injured by other than a motor vehicle. The question is not whether the threshold provision is discriminatory, but whether such differentiation is reasonably related to the public purpose sought to be accomplished.
The no-fault Act is a legislative directive to insure prompt and equitable compensation to persons injured by motor vehicles. This is accomplished by Sections 4 and 7 which provide direct benefits to the insured automobile owner, his family, guest passengers, others operating his car with permission, and to pedestrians struck by his motor vehicle, regardless of fault in the causation of the accident. As we have stated previously, the purpose of requiring prompt payment of compensation to persons injured in a motor vehicle is within the scope of the police power of the state. (Pinnick v. Cleary, supra; City of Wichita v. White, supra; Opinion of the Justices, supra.) One of the obvious purposes of the Legislature in limiting recovery under the threshold provision was clearly to eliminate minor claims for pain and suffering. The Legislature could reasonably have thought that the number of such cases (see DOT study) was largely connected with exaggerated claims for pain and suffering in instances of relatively minor injury. Our prior decisions are to the effect that subjective complaints of pain and suffering defy accurate monetary appraisal. (Domann v. Pence, 183 Kan. 135, 325 P. 2d 321; Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60.) In addition, minor “nuisance” claims were often overpaid, and as stated in Pinnick v. Cleary, supra, “. . . It was clearly proper for the Legislature to conclude that the benefits of compensating an injured person for relatively minor pain and suffering, which as such entails no monetary loss did not warrant continuation of the practice when balanced against the evils it had spawned.” (p. 610.)
We conclude the threshold limitation is a determination by the Legislature of public policy, and is reasonably related to problems that affect the public welfare, including the economic welfare of the state and its citizens, and therefore bears a rational relationship to the legislative objective of compensating persons promptly for accidental bodily injury arising out of the ownership and use of motor vehicles.
Plaintiff next contends the monetary medical expense standard, set at $500 by Section 17, arbitrarily and invidiously discriminates between various segments of the state’s population; that the $500 standard is not reasonably related to any legitimate legislative purpose; and that such a standard discriminates against those persons who are economically disadvantaged. The contentions are without merit.
The principle stated by Mr. Justice Holmes in Louisville Gas Co. v. Coleman, 277 U. S. 32, 72 L. Ed. 770, 48 S. Ct. 423, is applicable to the questions presented:
“. . . [W]hen it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.” (p. 41.)
The Act requires the medical expense standard be calculated on the basis of the “reasonable value” of the medical services, and not on the basis of out-of-pocket expenses. Actual expenditures for medical treatment are not conclusive as to their reasonable value. Evidence that the reasonable value of the medical expense was an amount different than the amount actually charged is admissible in all actions to which Section 17 applies. Persons entitled to receive free medical benefits may comply with the medical expense threshold by showing that the medical treatment received has an equivalent value of at least $500. Moreover, any person receiving necessary services, normally performed by a nurse, from a relative or member of the household is entitled to include the reasonable value of such services in meeting the threshold requirement.
Economic disparity in the market place is beyond judicial control. To equate absolute economic equality with equal protection of the law is absurd. The "reasonable value” criterion permits sufficient flexibility for the courts of this state to insure that those who are economically disadvantaged are not deprived of a right enjoyed by the more affluent. Based upon the standard of "reasonable value” it is clear the medical expense standard is non-discriminatory upon its face.
An argument has been advanced challenging as a denial of equal protection the option given owners of motorcycles to reject in writing the coverage for personal injury protection benefits. It is claimed that Section 7 (f) in permitting the motorcycle owner to reject in writing PIP coverage grants him special privileges and immunities thereby creating an arbitrary classification not reasonably related to any legitimate purpose of the Act. Counsel argues there is no justification for exempting motorcycle owners from compulsory first party coverage.
It should be noted that this court is not made the superintendent of legislative activity under principles of equal protection. (Griswold v. Connecticut, 381 U. S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678.) Equal protection principies do not restrain tire normal exercise of governmental power, but only abuse in the exertion of such, authority. The principle of equal protection is not offended against simply because the exercise of the power may result in some inequality. (Louisville & Nashville R. R. v. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 S. Ct. 676.) There is no precise application of the rule of reasonableness in classifying, and equality permits many practical inequalities. There need not be an exact exclusion or inclusion of persons and things. (Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 42 L. Ed. 1037, 18 S. Ct. 594.) The state enjoys a wide range of discretion in distinguishing, selecting, and classifying, and it is sufficient if a classification is practical and not palpably arbitrary. (Orient Insurance Company v. Daggs, 172 U. S. 557, 43 L. Ed. 552, 19 S. Ct. 281; Shelton v. Phalen, 214 Kan. 54, 519 P. 2d 754; State v. Weathers, supra; Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 877; Martin v. Davis, 187 Kan. 473, 357 P. 2d 782, app. dismissed 368 U. S. 25, 7 L. Ed. 2d 5, 82 S. Ct. 1; Board of County Comm'rs v. Robb, 166 Kan. 122, 199 P. 2d 530.) “. . . To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accom modations . . . What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to . . . judicial review. . . .” (Metropolis Theatre Co. v. Chicago, 228 U. S. 61, 69, 70, 57 L. Ed. 730, 734, 33 S. Ct. 441, 443.)
The regulation and control of traffic using the highway is a proper exercise of the police power in furtherance of the general welfare. This principle has been so well established that further discussion or citation of authorities is not deemed necessary. There is a legitimate reason for the Legislature to recognize the enate differences of the various types of vehicles using the highways and to regulate the use of them because of the difference in their characteristics. Illustrative of the Legislature’s recognition of tihe difference between motor vehicles and motorcycles is the definition section of the Act regulating traffic on highways. K. S. A. 1973 Supp. 8-501 defines motor vehicles as:
“Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires but not operated upon rails.”
The same section defines motorcycles as:
“Every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three (3) wheels in contact with the ground, but excluding a tractor.”
The difference in the physical characteristics of motorcycles has caused the Legislature to classify motorcycle owners and operators separately for the purpose of regulating their use of the highways. This was accomplished under the police power of the state. (See K. S. A. 1973 Supp. 8-577g to 8-577k) Those statutes require that motorcycle owners and operators conform to certain standards in the use and operation of motorcycles which are not required of automobile owners and drivers. The establishment of such a classification for different treatment does not offend the due process and equal protection clauses of the Constitution since such classifications bear a reasonable relation to a legitimate public purpose. (Wright v. Pizel, supra.)
There is substantial reason for the Legislature to make a distinction in the No-Fault Act between automobile owners and operators and motorcycle owners and operators because (1) the general physical characteristics of the two types of vehicles considered in relation to the effects produced upon the operators or passengers of such vehicles by an accident (City of Wichita v. White, supra); (2) a motorcycle operator involved in an accident will most surely be thrown from the vehicle onto the pavement, and since the weight of the vehicle is so much less than the weight of an automobile, a collision, even at reduced speeds, will obviously produce more serious personal injury to the motorcycle operator than the same collision would produce to the driver or passengers in an automobile; (3) while the automobile is used ordinarily as a family conveyance and is used primarily on the streets and highways, most motorcyclists use their motorcycles in addition to transportation, for pleasure and sports on and off the public ways, and (4) because of the difference in use, and primarily because of the vulnerability of the operator or passenger on the motorcycle to serious injury, the financial exposure for medical and hospital expenses, as well as loss of earnings, is much greater than it would be for an automobile driver under the same circumstances. Hence, the cost of procurring the personal injury protection benefits would be substantially greater for a motorcyclist than it would be for an automobile owner.
No perceptible inequality results from granting the owner of a motorcycle the option to purchase personal injury protection benefits. A motorcycle owner who rejects such coverage also loses his right to participate in the assigned claims plan (Sec. 16 [a] [1]), which right is available to any other injured noninsured person. Furthermore, the exercise of that option does not remove the motorcycle owner from the coverage of compulsory liability insurance as required by Section 4, nor from the threshold requirement of Section 17. The public is still protected from injuries occasioned by a motorcycle in three ways: (1) their own no-fault coverage; (2) the assigned claims plan, and (3) through third party liability coverage which is required of the motorcycle owner. It cannot be said the option granted such owner, commonly treated separately in many other ways (Logquist v. Insurance Co., 263 N. C. 615, 140 S. E. 2d 12; Westerhausen v. Allied Mutual Ins. Co., 258 Ia. 969, 140 N. W. 2d 719), is palpably arbitrary or irrational. The difference between the subject of a legislative classification need not be great, and if any reasonable distinction between the subjects as a basis for the classification can be found, the classification should be sustained. (16 Am. Jur. 2d, Constitutional Law, § 500, p. 875.)
In the areas of economic and social legislation, a statutory plan does not violate the equal protection clause merely because the classifications contained therein are imperfect. (Village of Belle Terre v. Boraas, _ U. S. _, 39 L. Ed. 2d 797, 94 S. Ct. 1536, 42 L. W. 4475; Jefferson v. Hackney, 406 U. S. 535, 32 L. Ed. 2d 285, 92 S. Ct. 1724.) Nor does the equal protection clause require a state “to chose between attacking every aspect of a problem or not attacking the problem at all . . .” (Dandridge v. Williams, 397 U. S. 471, 487, 25 L. Ed. 2d 491, 503, 90 S. Ct. 1153, 1162.) The foregoing principles were stated by Mr. Chief Justice Hughes in West Coast Hotel Co. v. Parrish, 300 U. S. 379, 81 L. Ed. 703, 57 S. Ct. 578:
". . . This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulations to all cases which it might possibly reach. The legislature ‘is free to recognize degrees of harm and it may confine its restrictions! to those classes of cases where the need is deemed to be clearest.’ If ‘the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.’ There is no ‘doctrinaire requirement’ that the legislation should be couched in all embracing terms. (Citations.) . . .” (300 U. S. at 400, 81 L. Ed. at 703, 57 S. Ct. at 585, 586.)
In Williamson v. Lee Optical, supra, Mr. Justice Douglas said:
“. . . The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. (Citation.) Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. (Citations.) The legislature may select one phase of one field and apply a remedy there, neglecting the others.” (348 U. S. at 489, 99 L. Ed. at 573, 75 S. Ct. at 465.) (Emphasis supplied.)
We are of the opinion Section 7 (/) creates a classification which rests upon a real, not fictitious, basis, and that the plaintiff and intervenor failed to carry the burden of showing, as our decisions require (Parmelee v. Ziegler, 181 Kan. 703, 708, 314 P. 2d 340; Board of County Comm'rs v. Robb, supra), that legislative action with respect thereto was either arbitrary or capricious. It follows the contentions respecting the invalidity of Section 7 (f) cannot be sustained.
The plaintiff contends the requirement of Section 6 that a nonresident motorist must have a motor vehicle liability insurance policy meeting the requirements of the No-Fault Act places an unwarranted burden upon interstate travel. He further contends the provisions of the prior no-fault law (K. S. A. 40-3101 et seq.) which permitted dissimilar treatment between a Kansas resident and a non-resident violates Section 17 of the Bill of Rights of the Constitution of Kansas, the equal protection clause of the Fourteenth Amendment, and Article 4, Section 2 of the Constitution of the United States.
The district court found plaintiffs and intervenor lacked standing to assert the rights of a non-resident. We agree. The constitutionality of governmental action can only be challenged by a person directly affected and such challenge cannot be made by invoking rights of others. (City of Kansas City, v. Railway Co., 59 Kan. 427, 53 Pac. 468, 52 L. R. A. 321, aff. 176 U. S. 114, 44 L. Ed. 392, 20 S. Ct. 284; Marks v. Frantz, 179 Kan. 638, 298 P. 2d 316; State, ex rel., v. Fleming Co., 184 Kan. 674, 339 P. 2d 12; Delight Wholesale Co. v. City of Overland Park, 203 Kan. 99, 453 P. 2d 82; Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 479 P. 2d 860.) Both plaintiff and intervenor are residents of this state. The class they represent is composed of “all citizens of Kansas,” hence they may not litigate constitutional rights of a class they do not represent.
In addition to the foregoing equal protection arguments, the plaintiff and intervenor raise two other constitutional issues. It is contended the threshold provision of Section 17 deprives a person injured in a motor vehicle accident of the right to trial by jury, which violates Section 5 of the Bill of Rights to the Kansas Constitution. The constitutional guaranty of a right to trial by jury exists only in such oases as it existed at common law. (Kimball and others v. Connor, Starks and others, 3 Kan. 414; Grosshans & Petersen, Inc., v. Givens, 191 Kan. 506, 383 P. 2d 959; Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 497 P. 2d 110.) We have previously held the Legislature has the power to modify the common law. Section 5 of our Bill of Rights does not bar those changes. The section requires that triable questions of fact under existing substantive law be submitted to a jury. The threshold provision represents a legislative change in tort liability reparation and does not violate the right to trial by jury.
In addition, it is contended the No-Fault Act contains criminal sanctions which constitute an unlawful delegation of legislative power. Under the No-Fault Act the Commissioner of Insurance and the Director of Vehicles merely determine the existence or non-existence of a fact or condition requisite to the law’s application. That determination is made at a hearing. We conclude the Act does not violate the delegation of powers doctrine. (Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239; Giddings v. City of Pittsburg, 197 Kan. 777, 421 P. 2d 181; State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537; Marks v. Frantz, supra.)
We turn to the defendant’s contention the district court erred in concluding the title to Substitute for House Bill 1129 (K. S. A. 40-3101, et seq.) violated Article 2, Section 16 of the Kansas Constitution. It would serve no useful purpose to prolong this opinion with an extended discussion of this point. We have carefully examined the title to the Act and find it embraces but one subject which is clearly expressed in its title and no constitutional defect exists.
Likewise, the court has examined the contention the district court erred in its construction of the language and effect to be given K.S.A. 40-3113 (a). The court found the section violated the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and Article 2, Section 17 and Sections 1, 2 and 18 of the Bill of Rights of the Constitution of the state of Kansas. The denial of due process and equal protection resulted from the use of the word “damages” in the second sentence of the statute.
When a statute is susceptible of more than one construction, it must be construed to give expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute. (Gnadt v. Durr, 208 Kan. 783, 494 P. 2d 1219.) While the scrivener could well have used the term “benefits” instead of “damages,” we think the legislative intent is clear. They key word in the second sentence is “repay.” To repay requires that the insured receive duplicate payments. The section, in its entirety, was designated to prevent duplicative recovery. The section is not so vague as to render it unconstitutional.
Defendant further contends the district court erred in construing the language and effect of K. S. A. 40-3117 — the effective no-fault law for the first 53 days of 1974. The court found those provisions denied Kansas residents equal protection and due process of law as guaranteed by the Constitution of the United States and the Constitution of Kansas.
K. S. A. 40-3117 (a) established a tort exemption to the extent that personal injury protection benefits were paid for injury. No tort exemption is provided where an injured person is able to sue for non-pecuniary losses under the provision of subsection (b). An injured person may nevertheless sue for economic losses in excess of the PIP benefits received. K. S. A. 40-3117 (b) provides that in any action for tort against an owner, operator or occupant of a motor vehicle covered by a liability insurance policy containing PIP coverage, a plaintiff may receive damages for non-pecuniary losses only in the event his medical expense exceeds $500, or he suffers a specified injury.
Again, no useful purpose would be served by an extended discussion of the hypothetical automobile accident cases utilized by the district court in finding Section 17 (K. S. A. 40-3117) of the Act unconstitutional. While K. S. A. 40-3104 requires that every motor vehicle owner secure the required no-fault liability insurance, there may be owners who will not obtain such insurance until after proceedings to suspend tiheir vehicle registration have been commenced. In addition, the staggered system of motor vehicle registration in Kansas will permit non-compliance by some Kansas residents for an interim period. K. S. A. 40-3117 may result in some inequality between Kansas residents because of those resident motor vehicle owners who may prefer risking criminal liability to securing no-fault insurance. To permit such persons to frustrate the purpose of the no-fault Act (K. S. A. 40-3101 et seq.) and deny the public the benefits derived from that Act, would render any legislative reparation reform, a nullity. In sum, the effect of K. S. A. 40-3117 has not been shown to be invidiously discriminatory, and we conclude the plaintiff and intervenor have failed to show the statute is unconstitutional in its operative effect.
The result of the foregoing discussion is that the provisions of Substitute for House Bill 1129 (K. S. A. 40-3101 et seq.) and its application for the first 53 days of 1974 — from January 1, 1974 to February 22, 1974 — were not unconstitutional in any respect and were the effective no-fault law of this state during such period and until repealed in its entirety by Senate Bill 918 on February 22, 1974.
The court is of the opinion that the provisions of Senate Bill 918 containing basic no-fault concepts as set forth and discussed above, are not unconstitutional for any of the reasons urged by the parties upon the grounds they violate the due process and equal protection clauses of the Kansas Constitution or the Fourteenth Amendment to the Constitution of the United States, or any of the other provisions of the state or federal constitutions urged. It follows that the judgment of the district court is reversed with directions to set aside the injunction issued by that court on January 24, 1974, and enter judgment for the defendant state officials in accordance with the views expressed in this opinion.
It is so ordered.
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The opinion of the court was delivered by
Fromme, J.:
This action was brought by a passenger (Gene L. Vaughn) against the owner-operator of an automobile (Gary G. Murray) and against the owner of a cow (Lloyd L. Featherston). The cow wandered onto a county road during the nighttime and was struck by the automobile. Summary judgment was entered in favor of the owner-operator of the automobile as against the passenger. A motion for summary judgment by the owner of the cow as against the passenger was denied. The passenger appeals from the summary judgment in favor of the driver. The owner of the cow cross-appeals from the order denying summary judgment against the passenger.
The appeal and cross-appeal were pending in this court on January 26, 1974, when the Kansas guest statute, K. S. A. 8-122b, was held unconstitutional and void as a denial of equal protection of the law under the Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the Kansas Bill of Rights for the reason that the classifications provided in that statute are arbitrary and discriminatory and have no rational basis. See Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362 (No. 47,101 opinion filed January 26, 1974).
It will therefore become necessary in the course of this opinion to determine the retroactive effect, if any, to be given the overruling decision of Henry v. Bauder, supra, in light of the facts and circumstances of the present case. This action accrued October 8, 1971. The summary judgment appealed was entered March 28, 1973. Notice of appeal was filed April 16, 1973. The overruling decision, Henry v. Bauder, supra, was filed January 26, 1974. We will first examine the points raised on the appeal and cross-appeal and then discuss the question of the retroactive-prospective application of the overruling decision.
The appellant contends it was error for the trial court on summary judgment to determine as a matter of law that the owner-operator of the automobile could not be found guilty of gross and wanton negligence. The courts decision was made on the basis of the pleadings and the depositions of the passenger and of the owner-operator, from which the following account of the accident can be fairly deduced.
A wedding and reception were held at a rural church located on county road No. 1029 in Douglas County on the evening of October 8, 1971. The bridegroom was a brother of the driver, Murray, and a friend of the passenger Vaughn. The bride and groom took leave of the festive occasion shortly before 10:00 o’clock p. m. They headed south in the groom’s car on county road No. 1029. As usually happens they were vigorously pursued by some of their well-meaning friends. Defendant Murray, brother of the groom, used his car for the pursuit and he was accompanied on the chase by the plaintiff, Vaughn, and several other friends. It was dark when die chase began. The road they traveled was paved, dry, hilly and had a maximum speed limit of 50 miles per hour (mph). Prior to the day of the accident die driver, Murray, had seen catde on the road in this same area. The passenger Vaughn had seen cows on this roadway on frequent occasions. The defendant Murray drove his car at speeds between 90 and 100 mph in violation of the posted speed limit in a vain effort to overtake the bride and groom. He crested a hill and saw the car ahead swerve 4 or 5 feet from a straight line of travel. He proceeded with speed unchecked until he saw a cow standing in the roadway 450 yards ahead. Brakes were applied but the car collided with the cow and injuries resulted. At no time during the 2 or 3 mile chase did the passenger Vaughn ask the driver Murray to slow his speed. The occupants of the car were laughing and having a good time until the accident occurred. The parties lived in this neighborhood and were familiar with the road.
The trial court, after reviewing some of our decisions and much of fire deposition testimony, stated that the facts were not disputed and, when the faots were taken as true, it could not be reasonably determined that the defendant Murray was guilty of gross and wanton negligence. In further support of the summary judgment the court said that although plaintiff claimed discovery of evidence was not complete he made no suggestion of additional faots tending to support gross and wanton conduot. The drivers motion for summary judgment was sustained.
Although the question is not without difficulty we believe the trial court erred in entering summary judgment.
A summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and admissions on file show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (K. S. A. 60-256 [c].) But in considering a motion for summary judgment the movant’s adversary is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Rothwell v. Transmeier, 206 Kan. 199, Syl. ¶ 3, 477 P. 2d 960.) Normally, the presence or the absence of negligence in any degree is not subject to determination by the court on summary judgment, for such a determination should be left to the trier of the facts. It is only when it can be said that reasonable men cannot reach differing conclusions from the same evidence tibat the issue may be decided as a question of law. (Abston v. Medora Grain, Inc., 206 Kan. 727, 735, 482 P. 2d 692.) So in the present case if we are to affirm the summary judgment entered by the trial court in favor of the driver we must be able to say on the record before us that the probability of proving gross and wanton negligence is excluded.
Two things were stressed by the trial court in reaching its decision, the lack of evidence to indicate a willingness to injure plaintiff and that speed alone does not constitute gross and wanton negligence.
Proof of a willingness to injure is not necessary in establishing gross and wanton negligence. This is true because a wanton act is something more than ordinary negligence but it is something less than willful injury. To constitute wantonness the act must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act. It is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the natural consequences of the actions of the negligent party. (Saunders v. Shaver, 190 Kan. 699, 701, 378 P. 2d 70; Mann v. Good, 202 Kan. 631, 634, 451 P. 2d 233; Pickens v. Maxwell, 203 Kan. 559, 456 P. 2d 4.)
In the case at bar, if one concedes the truth of the statements of fact contained in the depositions, the driver had seen cattle on this particular road in this vicinity on numerous occasions. The trier of fact might reasonably infer therefrom that he knew or should have realized the imminence of danger from the presence of cattle on the roadway and in reckless disregard of probable consequences he proceeded to drive 100 mph at night in violation of a 50 mph maximum speed limit on a “hilly” county road while chasing the bride and groom. In addition it must be conceded he saw the car ahead swerve from its line of travel and should have then known of some peril, which he later encountered. He proceeded some distance thereafter with speed unchecked. At best it would appear from the record that gross and wanton negligence was a question of fact for the jury.
Appellee Murray points to our previous decisions which hold that evidence of speed alone does not constitute gross and wanton negligence (Polzar v. Raymond, 189 Kan. 340, 369 P. 2d 373; Tuminello v. Lawson, 186 Kan. 721, 352 P. 2d 1057; Perry v. Schmitt, 184 Kan. 758, 763, 339 P. 2d 36.) and we adhere to those holdings. However, we believe under the rationale of Mann v. Good, supra, and Pickens v. Maxwell, supra, sufficient additional causes may have contributed to the collision and were present from which a jury might reasonably have found gross and wanton negli gence on the part of the driver. Therefore the summary judgment in favor of the driver Murray was in error and the judgment should be reversed on appeal.
The passenger Vaughn next contends that the guest statute (K. S. A. 8-122b) is unconstitutional and that the statutory requirement of gross and wanton negligence of the operator of the vehicle should not have been applied in the trial court. This issue was not raised in the trial court. It was presented for the first time when appellant filed his brief in this court. A constitutional challenge to a legislative act will not be entertained on appeal to this court unless the challenge has been alleged in the pleadings or presented to the trial court (Board of County Commissioners v. Brown, 183 Kan. 19, Syl. ¶ 2, 325 P. 2d 382; National Van Lines v. Jones, 192 Kan. 338, Syl. ¶ 1, 388 P. 2d 660.), absent some compelling state interest. (See State v. Nelson, 210 Kan. 439, 443, 502 P. 2d 841.) Under the present state of the record appellant’s arguments as to the unconstitutionality of the statute cannot be considered by this court in determining the correctness of the trial court’s decision.
We turn now to the cross-appeal by Featherston, the owner of the cow, and are confronted with a challenge to his right to be heard. The appellee and cross-appellant (Featherston) seeks to question the order of the trial court which overruled his motion for summary judgment. It is contended that an order overruling a motion for summary judgment is not a final decision as required by K. S. A. 60-2102 (a), from which an appeal may be taken. The contention is sound (see Wright and Miller, Federal Practice and Procedure, Civil, § 2715, p. 416, for federal cases and see also Kansas State Highway Commission v. Roepke, 200 Kan. 660, 662, 438 P. 2d 122.) but sound or not this is a false premise upon which to base a challenge to a cross-appeal.
In the present case appellant, Vaughn, initiated the appeal from a summary judgment entered in favor of appellee Murray. Thus the appellate jurisdiction of this court was properly invoked as required by K. S. A. 60-2102. K. S. A. 60-2102 (a) (4) in part provides:
“. . . In any appeal or cross-appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.”
The provisions of K. S. A. 60-2103 (h) govern the initiation of cross-appeals. This latter statute provides:
“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he complains, he shall within twenty (20) days after the notice of appeal has been served upon him and filed with the clerk of the trial court, give notice of his cross-appeal.”
Under both K. S. A. 60-2103 (h) and its predecessor, G. S. 1949, 60-3314, it has been held that a cross-appellee may obtain a review of all rulings adverse to him, interlocutory or otherwise, when such rulings may on remand affect the subsequent course of the proceedings. It is, of course, necessary that a cross-appeal be perfected in order for an appellee to obtain a review of such rulings. (See Gould v. Robinson, 181 Kan. 66, 70, 71, 309 P. 2d 405; Fields v. Anderson Cattle Co., 193 Kan. 569, 396 P. 2d 284; James v. City of Pittsburg, 195 Kan. 462, Syl. ¶ 1, 407 P. 2d 503; and Reinecker v. Board of Trustees, 198 Kan. 715, 722, 426 P. 2d 44.) Roth the appeal and cross-appeal were perfected in this case and cross-appellee (Featherston) is entitled to a review of the order overruling his motion for summary judgment.
The claim of the passenger Vaughn against the cross-appellee, Featherston, is based upon simple negligence in permitting his cow to run at large and wander onto a public right-of-way. Crossappellee, Featherston, contends that appellant, Vaughn, by his own admissions was guilty of contributory negligence as a matter of law in failing to remonstrate or warn the driver. An invitee riding in an automobile driven by the owner at an obviously dangerous speed must exercise ordinary care for his own safety and if he fails to warn the driver, to remonstrate with him or to demand that he be given an opportunity to leave the car, and does not take any precaution for his own safety, cannot recover for the negligent operation of the car by the driver. (Naglo v. Jones, 115 Kan. 140, 222 Pac. 116; Dirks v. Gates, 182 Kan. 581, 590, 322 P. 2d 750; Sander v. Union Pacific Rld. Co., 205 Kan. 592, 596, 470 P. 2d 748; Kelty v. Best Cabs, Inc., 206 Kan. 654, Syl. ¶ 4, 481 P. 2d 980.)
However, in the present case the vehicle in which Vaughn was a passenger had only traveled two or three miles before the accident. There were several other friends in the automobile and “they were laughing and having a good time”. Vaughn did not look at the speedometer to determine how fast they were traveling, although he knew they were “going fast”. Conceding as facts those things most favorable to the passenger in this case we cannot conclude as a matter of law he was aware of the obviously dangerous speed. There was no evidence he saw the car ahead swerve. Without awareness of the dangerous speed or of the presence of some danger ahead we cannot say as a matter of law he was negligent in failing to warn or remonstrate.
As previously pointed out the presence or the absence of negligence is normally not subject to determination on summary judgment but it is a question of fact for the jury. (Abston v. Medora Grain, Inc., supra.) After examining the contention of cross-appellee in light of the record before us we hold the trial court did not err in overruling cross-appellee’s motion for summary judgment. This case should therefore be affirmed on cross-appeal.
What has been said disposes of the contentions on both the appeal and cross-appeal but since the summary judgment in favor of the driver is reversed we must remand the case for trial. It therefore becomes necessary to determine the retroactive effect, if any, to be given at the subsequent trial to the overruling decision of Henry v. Bauder, supra. In that overruling decision the Kansas “guest statute” (K. S. A. 8-122b) was declared unconstitutional and void. It will not be necessary for our purposes to review that prior decision except to note that it removed the requirement, in causes of action brought by persons who are transported by the owners or operators of motor vehicles as guests, of proving gross and wanton negligence to maintain a cause of action against the driver for injury, death or damage. By reason of the overruling decision a guest in a motor vehicle may now maintain a cause of action based on ordinary negligence.
In the present case the appellant’s cause of action accrued, the summary judgment was entered and the challenged judgment was pending on appeal in this court before Henry v. Bauder, supra, was handed down. The summary judgment, entered prior to the overruling decision, is now reversed on appeal because of reversible error under the prior law. The case must be remanded for a trial which will occur after January 26, 1974, the date of the overruling decision. The question presented is whether in the trial which follows plaintiff must plead and prove gross and wanton negligence under the law existing when his cause of action accrued or whether he may maintain his cause of action by amending his pleadings and proof to conform to the law as declared in the overruling decision, Henry v. Bauder, supra.
Much has been written for law journals on the subject of retroactive-prospective application of overruling decisions by courts. (Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. of Chicago L. Rev. 719; Keeton, Creative Continuity in the Law of Torts, 75 Harvard L. Rev. 463; Mishkin, The Supreme Court 1964 Term, Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harvard L. Rev. 56; Fairchild, Limitation of New Judge-made Law to Prospective Effect Only: “Prospective Overruling” or “Sunbursting”, 51 Marq. L. Rev. 254; Schaefer, The Control of “Sunbursts”: Techniques of Prospective Overruling, 42 N. Y. U. L. Rev. 631.) As a matter of constitutional law, it can safely be said, retroactive operation of an overruling decision is neither required nor prohibited. Many of the cases on the subject have been collected in the annotation, Overruling Decision — Application, appearing in 10 A. L. R. 3d 1371-1447.
Courts have given attention to various factors in determining whether or not they should apply an overruling decision retroactively. Some of the factors which have been considered are: (1) Justifiable reliance on the earlier law; (2) The nature and purpose of the overruling decision; (3) Res judicata; (4) Vested rights, if any, which may have accrued by reason of the earlier law; and (4) The effeot retroactive application may have on the administration of justice in the courts.
The “procedural” and “substantive” aspects of an overruling decision are often so indistinguishable from one another that most of the modem cases make no distinction between the two so far as retroactive or prospective application is concerned. For example see the cases discussed in §§ 12, 13, 22 and 32 of the Annotation, 10 A. L. R. 3d 1420, 1423, 1434 and 1444.
Our overruling decision, Henry v. Bauder, supra, had the effect of striking down the “guest statute” (K. S. A. 8-122b) which became effective May 28, 1931. For almost forty-three years litigants, courts and insurance companies felt the impact of the statute upon their rights, duties and liabilities as is apparent by scanning the scores of cases collected in the case annotations in the statute books. The statute was construed and applied to cases coming before the courts. In light of this, the statement found in 16 Am. Jur. 2d, Constitutional Law, § 178, p. 405, appears applicable. It reads:
“The actual existence of a statute prior to a determination that it is unconstitutional is an operative fact and may have consequences which cannot justly be ignored; when a statute which has been in effect for some time is declared unconstitutional, questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, and of public policy in the light of the nature both of the statute and of its previous application, demand examination. It has been said that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.”
(See Chicot County Dist. v. Bank, 308 U. S. 371, 84 L. Ed. 329, 60 S. Ct. 317.)
In Gt. Northern Ry. v. Sunburst Co., 287 U. S. 358, 77 L. Ed. 360, 53 S. Ct. 145, Mr. Justice Cardozo, speaking for the Supreme Court of the United States, said:
"... A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly [citation omitted], that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted, [citations omitted] On the other hand, it may hold to the ancient dogma that the law declared by its courts had a Platonic or ideal existence before the act of declaration, in which event the discredited declaration will be viewed as if it had never been, and the reconsidered declaration as law from the beginning, [citations omitted] The alternative is the same whether the subject of the new decision is common law [citation omitted] or statute, [citations omitted] The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. We review not the wisdom of their philosophies, but the legality of their acts. . . .” (pp. 364, 365.)
When a particular action has accrued and the parties have become involved in litigation prior to the time of the announcement of the overruling decision the courts of this nation, after considering the circumstances of the particular case, have determined the future application of the law declared in the overruling decision by various rules. These rules fall into four categories: (1) Purely prospective application where the law declared will not even apply to the parties to the overruling case; (See cases collected 10 A. L. R. 3d, § 7, p. 1393.) (2) Limited retroactive effect where the law declared will govern the rights of the parties to the overruling case but in all other cases will be applied prospectively; (See Carroll v. Kittle, 203 Kan. 841, Syl. ¶ 10, 457 P. 2d 21; and cases collected in 10 A. L. R. 3d, § 8 [b], p. 1399.) (3) General retroactive effect governing the rights of the parties to the overruling case and to all pending and future cases unless further litigation is barred by statutes of limitation or jurisdictional rules of appellate procedure; (See cases collected in 10 A. L. R. 3d, § 8 [e], pp. 1407-1412.) and (4) Retroactive effect governing the rights of the parties to the overruling case and to other cases pending when the overruling case was decided and all future cases, but limited so the new law will not govern the rights of parties to cases terminated by a judgment or verdict before the overruling decision was announced. (See Hanes v. State, 196 Kan. 404, 411 P. 2d 643, and cases collected in 10 A. L. R. 3d, § 8 [c, d], pp. 1401-1407.)
We have considered what might be the effect of giving the law declared in the overruling case, Henry v. Bauder, supra, general retroactive effect to all pending and future cases without limitation. However, we believe some limitation is necessary because of benefits which flow from giving finality to cases fairly heard and determined. There is trauma and expense to litigants in every trial. The trauma and expense is doubled by requiring a second trial. The outcome of a second trial is never certain. “Guest statute” cases are generally in the liability insurance field and are defended on behalf of insurance companies. Policy holders are reluctant to submit to a second trial. Especially is this true when their cases were fully presented and terminated by the courts under the law in effect when the cases were tried. Trial courts with burdensome dockets are hesitant to undertake a second trial.
In addition the present overruling decision could not have been anticipated and .the change in the law came as a surprise to former litigants, lawyers and judges. Unsuccessful litigants looking back can argue they were prejudiced. The Code of Civil Procedure (K. S. A. 60-260) places wide discretion in the hands of the trial courts to set aside judgments upon “any . . . reason justifying relief from the operation of the judgment.” The application of this statute could result in confusion. We should not leave this matter to varied future interpretations by trial courts. The uncertainty would surely result in confusion and fruitless relitigation in some cases. We desire to give finality to those cases which have been presented to and determined by the trial courts of this state and the cases have terminated in judgments or verdicts without reversible error under the law then existing.
To give the overruling decision of Henry v. Bauder, supra, a limited retroactive effect it becomes necessary to declare a rule to govern the lawyers, litigants and the courts. It is difficult to give birth to a rale without oversight or ambiguity. See Bielski v. Schulze, 16 Wis. 2d 1, 114 N. W. 2d 105; United States F. & G. Co. v. Mil waukee & S. T. Corp., 18 Wis. 2d 1, 117 N. W. 2d 708; and Alberts v. Rzepiejewski, 18 Wis. 2d 252, 118 N. W. 2d 172.
The rule of retroactive effect for our present purposes which we believe will best serve the lawyers, litigants and courts of this state is as follows:
The law as declared in the overruling decision of Henry v. Bauder, supra, (holding Kansas guest statute unconstitutional) shall be given retroactive application to all similar cases pending in the courts of this state on January 26, 1974, and to cases filed thereafter regardless of when the oauses of action accrued with the following exception: When a judgment or a verdict has been entered in a district court prior to January 26, 1974, and the same is free of reversible error under the law then existing, the law as declared in Henry v. Bauder, supra, shall not apply unless the constitutional question decided in the overruling decision has been timely presented to the trial court.
As a corollary to this rule limiting the retroactive effect of Henry v. Bauder, supra, it follows that if a judgment or verdict entered prior to January 26, 1974, is thereafter set aside on proper motion in the district court or reversed on appeal because of reversible error under the prior law any trial conducted thereafter shall be governed by the law as now declared in the overruling decision, Henry v. Bauder, supra.
The claim of Gene L. Vaughn against Gary G. Murray in this case comes within the corollary to the rule announced. The summary judgment, although entered and pending prior to January 26, 1974, is reversed on appeal because of reversible error under the prior law. Since this is true the claim is remanded for trial, trial should be conducted under the law as now declared in the overruling decision and the parties should be permitted to reframe the issues by amendment of pleadings or by pre-trial order.
Accordingly the case is reversed on appeal, affirmed on cross-appeal and remanded with directions to proceed in accordance with the opinions expressed herein.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in an eminent domain proceeding by the City of Wichita (plaintiff-appellant) wherein it acquired a right-of-way for federal highway purposes on land owned by H. L. and Myrtle M. Chapman (defendants-appellees).
The appellant asserts trial errors on appeal and challenges an allowance of attorneys’ fees to the landowners’ attorneys pursuant to K. S. A. 26-509 as part of the court costs.
The City of Wichita in its initial attempt to acquire the landowners’ property offered approximately $23,000.00, which the Chapmans declined to accept. Thereafter the city filed its petition in the district court of Sedgwick County to acquire the Chapman property by eminent domain. The court appointed appraisers filed an award to the value of the property in the sum of $45,000.00. Being dissatisfied with the award the city took an appeal and demanded that a jury try the issue of just compensation for the taking.
At tire trial the city produced three duly qualified real estate experts, Herman Oakes, Jesse Johnson, and Paul Brown, who expressed their opinions as to the value of the Chapmans’ property.
Mr. Oakes stated that in his opinion the fair market value of the property was $25,000.00.
Mr. Johnson appraised the subject property at $25,600.00. In arriving at that figure, Johnson did not attach any value to the improvements on the Chapmans’ property because he felt their value was “only to provide some income until such time that the property could be redeveloped commercially.” He relied upon six other sales of property which he considered comparable to the subject property. (One transaction he considered as a comparable is referred to as the Sutoris sale and will be discussed in conjunction with Mr. Brown’s testimony.)
On cross-examination Johnson stated three buildings were located upon the subject property; a commercial building, a house and a garage. The commercial building measured 1,536 square feet. Johnson was unable to state the replacement cost of the building without referring to information he did not have with him on the witness stand. He described the house as a forty-five year old, two-story dwelling containing approximately 1,495 square feet. He estimated the replacement building costs at $12.00 per square foot for the ground floor and $6.50 to $7.00 per square foot for the second floor. The garage would accommodate two cars and contained 351 square feet. Its replacement cost was approximately $4.50 per square foot. He also stated that while the average purchaser in the market place would buy the subject property for future redevelopment he would not deny that as far as the Chap-mans were concerned the highest and best use of the property was the way they were using it.
The city’s only other witness in the condemnation proceeding was Mr. Brown. On direct examination the witness stated he had participated with Johnson throughout the process of appraising the Chapmans’ property, and if he was asked the same questions about the appraisal he would answer substantially the same as Johnson did.
As indicated in reviewing Johnson’s testimony above, he and Brown used six sales they considered comparable to determine the fair market value of the subject property as of May 10, 1970. One of those comparables involved the sale of land referred to as the Sutoris sale. Brown had previously considered the Sutoris sale in an appraisal report made for the City of Wichita and the State Highway Commission on August 15, 1989. In that report, the Sutoris sale was utilized by Brown as a comparable sale in appraising the Bulger Cadillac-Oldsmobile agency property in a condemnation proceeding.
On cross-examination Mr. Frank McMaster, counsel for the Chapmans, used Brown’s 1969 report to illustrate that the Sutoris sale as made in the 1969 appraisal conflicted with the analysis made with respect to the Chapmans’ property. Apparently, Brown had used higher figures in reporting the Sutoris sale in the 1969 report than he used in his report concerning the instant proceeding. Cross-examination had the obvious effect of discrediting the witness. Brown’s 1969 report was not offered into evidence by the Chapmans, however, on redirect examination the city had the entire report admitted.
According to Brown, he delivered copies of the 1969 report to the engineering department of the City of Wichita and the state and federal reviewers. Mr. Stanford Smith was special counsel representing the City of Wichita in the Bulger Cadillac-Oldsmobile condemnation and had access to Brown’s report. Mr. Smith is the law partner of Frank McMaster and they served as co-counsel for the Chapmans. The city objected to the use of the 1969 report by die Chapmans’ attorney as being unethical. The trial court allowed the Chapmans to use the 1969 report as a basis of cross-examination and stated the question of the conduct of the Chap-mans’ co-counsel “will have to be decided by an appropriate tribunal where that matter comes on within their jurisdiction.”
Three persons testified on behalf of the Chapmans: H. L. Chapman, one of die landowners, Nestor Weigand and W. A. Mullens, two real estate experts.
According to Chapman, his family acquired the subject property in 1916. He had lived there from that date with his sister and mother until the condemnation. He had operated a Schwinn bicycle shop and a lawn mower service in the commercial building on the premises. However, he lost the Schwinn franchise because he could not borrow money to expand the facilities as required and use the subject property as collateral because of the city’s pending condemnation program. He further testified that three years prior to the condemnation he had raised part of the $38,000.00 necessary for an operation on his brother by mortgaging the subject property. He owed $10,030.69 on the mortgage at die time the property was condemned and it had to be paid off by the condemnation award. Since the condemnation he has purchased a smaller home for $15,500.00 and also another shop premise. Since he and his family have moved his mother (98 years of age) has been ill, requiring full-time nursing, and wants to be taken “home.”
In Chapman’s opinion the subject property had a value of $75,-000.00. His opinion was based in part upon an offer he had received from Skelly Oil Company and on anodier sale of property in the vicinity from P. J. Fisher to the city. The city’s objections to both the Skelly Oil offer and the Fisher sale were sustained by the trial court.
Nestor Weigand believed the highest and best use for the subject property would be some type of retail operation. In his opinion die subject property should be valued at $45,000.00. His appraisal did not allocate any value to the three buildings on the property because a developer, utilizing the property at its highest and best use would have to remove them. Weigand did state, however, that the improvements might have been the highest and best use of the property as far as the Chapmans were concerned. The witness considered the subject property as a key property for a potential assemblage of the surrounding properties.
The Chapmans’ other witness in the condemnation proceeding was W. A. Mullens. Mullens had been a real estate broker in Wichita for five years and prior to that time had spent eight years with Skelly Oil acquiring property for service station sites. He described the Chapmans’ property as having a 130 foot frontage on Kellogg avenue, with an additional fifteen feet actual usage due to an adjacent alley, and 5233/100 foot of frontage on Estelle Avenue. Mullens believed the highest and best use for the subject property would be as a service station; however, the subject property is not quite large enough so property to die north would have to be acquired to be used with it. At this point in Mullens’ testimony the city was permitted to ask him questions on voir dire out of the presence of the jury. This examination disclosed that the witness’ only opinion concerning the subject property was to value it in combination with other property to allow for building a service station. Mullens stated he could apportion the value of the subject property out of the assemblage, but the court sustained the city’s objection on grounds that the property had to be valued singularly rather than in an assemblage with other property. The Chapmans did proffer Mullens’ opinion that the highest and best use of the subject property would be an assemblage with other land, and its value in an assemblage would be $68,250.00. The court accepted the proffer but refused to allow the testimony to go before the jury. The appellee has not appealed from that ruling.
After all the evidence was introduced, and the instructions given, the jury deliberated, then returned a verdict for the Chapmans in the amount of $64,567.66. After considering evidence adduced at á hearing, the trial court allowed $13,500.00 as costs to be paid to the Chapmans “as and for their Attorneys’ fee” pursuant to K. S. A. 26-509.
The appellant’s first point on appeal is that there was no substantial, competent or credible evidence of value to support the jury’s verdict. The highest value placed on the property by any of the experts was $45,000.00; the verdict was for $64,567.66. The appellant states that only evidence tending to support the verdict was Mr. Chapman’s testimony. It is contended that after the trial court sustained the appellant’s objection to Mr. Chapman’s testimony concerning the Skelly Oil offer and the Fisher land sale the only basis remaining for his testimony was emotional attachment, which should not support the jury’s verdict (citing, City of Wichita v. May’s Company, Inc., 212 Kan. 153, 510 P. 2d 184). The appellant argues:
“. . . [T]he jury is not entitled to disregard the testimony of experts and give weight to a wholly unsupported expression of opinion of value by a landowner whose testimony shows he has no rational basis to support his opinion, for to do so robs the jury’s verdict of any rational basis. . . .”
It is appellees’ position that substantial evidence exists to support the amount of the jury’s verdict. It is argued the experts’ opinions did not include any value attributable to the improvements on the land and Chapman’s did, so the jury could take that into consideration; any of Chapman’s testimony based upon emotional attachment was received into evidence without objection by the appellant so that cannot be asserted for the first time on appeal; and in light of this court’s prior decisions Chapmans testimony is competent evidence to support the verdict.
It is well settled a landowner is a competent witness to testify as to the value of his property. (Urban Renewal Agency v. Tate, 196 Kan. 654, 414 P. 2d 28; Taylor v. State Highway Commission, 182 Kan. 397, 320 P. 2d 832; Randle v. Kansas Turnpike Authority, 181 Kan. 416, 312 P. 2d 235; and City of Wichita v. May’s Company Inc., supra.)
In City of Wichita v. May’s Company Inc., supra, the court said:
“. . . The thrust of the city’s argument urges this court to limit the rule by requiring a landowner to qualify; that is, he must establish a foundation for his testimony. The foundation should consist of knowledge developed from a buying and selling of real estate or an acquaintanceship and familiarity with land values in the neighborhood. The qualification of a landowner to testify as to the value of his land is not dependent on a showing of a knowledgeable background. It is based on the presumption the landowner has acquired knowledge by virtue of his ownership. Lack of knowledge is subject to exposure by the condemning authority. Regardless of what is disclosed, it does not affect the competency of the landowner to testify, but only the weight to be given to the testimony.’’ (p. 155.) (Emphasis added.)
Under the above rule Mr. Chapman’s testimony was competent, and the appellant had an opportunity to expose his lack of knowledge concerning land values on cross-examination. The weight to be attached to all the testimony, including that o£ Mr. Chapman, was for the jury. The jury is not bound by the opinion testimony of expert witnesses, or to the opinion of a nonprofessional witness, and the jurors may exercise their own judgment based upon experience in deciding the question touching which opinion testimony was given. (Urban Renewal Agency v. Tate, supra, p. 658.)
The record does not disclose any objections were interposed by the appellant to Mr. Chapman’s testimony, other than those relating to the Skelly Oil offer and the Fisher property sale. The verdict was approved by the trial court. We find no reason to disturb it; to do so would be to substitute our judgment for that of the trier of facts. (Schamp v. The City of Wichita, 160 Kan. 4, 159 P. 2d 402.)
It should be noted there was evidence from the various experts testifying in this case which gives support to Mr. Chapman’s opinion. None of the experts allocated other than a minimal value for the improvements on the land, consisting of a two-story house, a commercial building, and a garage. However, the improvements had a value to Mr. Chapman as he used the property. He lived in the house with his mother and sister, and used the commercial building to house his bicycle and mower shop.
The next point asserted by the appellant is that misconduct of the appellees’ counsel requires a new trial.
It is alleged Frank McMaster’s use of Paul Brown’s 1989 appraisal report for the Bulger Cadillac-Oldsmobile condemnation, which included an analysis of the Sutoris sale, violated Canon 4 of Supreme Court Rule No. 501 (211 Kan. lxxxvii).
Canon 4 provides:
“A Lawyer Should Preserve the Confidences and Secrets of a Client.”
Disciplinary Rule 4-101 (A) defines “confidences” and “secrets” as follows:
“‘Confidence’ refers to information protected by the attorney-client privilege under applicable law, and ‘secret’ refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.”
The appellant contends Brown’s 1969 analysis of the Sutoris sale was its “secret” within the above definition.
To resolve the point a more thorough examination into the background of the 1969 appraisal is in order. In 1969 Stanford Smith was employed as a special counsel to represent the City of Wichita in an action to condemn property owned by Bulger Cadillac-Oldsmobile. Paul Brown was employed as an expert witness on behalf of the city. Brown prepared an appraisal report, dated August 15, 1969, of the Bulger property, which included reference to a comparable sale known as the Sutoris sale. This report was delivered to Stanford Smith, the engineering department of the City of Wichita, the Kansas Highway Commission, the federal reviewers and counsel for the landowner, Bulger Cadillac-Oldsmobile. Brown’s deposition was taken by the attorney representing Bulger Cadillac concerning his appraisal report. The Bulger case was ultimately settled before a trial took place, the Smith’s employment terminated.
The appellees take the position that Brown’s 1969 report cannot be regarded as the appellant’s “secret,” but, on the contrary, was public information in that it was given to city, state and federal agencies whose records are public. Also, a copy was given to the landowners’ counsel.
It has long been the rule in Kansas that an attorney appearing against a party he has previously represented cannot, in forwarding the interests of his new client, used against his former client any knowledge or information acquired through his former connection. (Purdy v. Ernst, 93 Kan. 157, 143 Pac. 429.)
Assuming, without deciding, Brown’s 1969 appraisal report would otherwise fall into the prohibitions of Canon 4, it does not do so in this case because its existence and contents were made available to various agencies and to opposing counsel. Such public exposure of the information negates its “secret” or “confidential” character. The appellant never intended for Brown’s 1969 report to be “secret”; the purpose in having it prepared was for use in a condemnation proceeding.
In order for a communication from a client to his attorney to be confidential, and to impose upon the attorney the duty of not disclosing the same, it must be of a confidential character, and so regarded, at least by the client, at the time, and must relate to a matter which is in its nature private and properly the subject of confidential disclosure. (Cranston v. Stewart, 184 Kan. 99, 334 P. 2d 337; and In re Elliott, 73 Kan. 151, 84 Pac. 750.) This rule should also be applied to “secrets” within the meaning of Canon 4.
It has been held that an appraisal of real estate by one hired to perform such task is not a trade secret within the meaning of K. S. A. 60-432, and the witness was not privileged to refuse to testify. (City of Wichita v. Jennings, 199 Kan. 621, 433 P. 2d 351.)
It is also the general rule that an attorney may be compelled to produce papers belonging to his client where the knowledge of their existence and contents is accessible to others or the public. (Cranston v. Stewart, supra.)
Under the circumstances it was proper for Mr. McMaster on cross-examination to inquire into the Sutoris sale which was relevant to the direct testimony of the expert witness Rrown called on behalf of the appellant. (Humphries v. State Highway Commission, 201 Kan. 544, 442 P. 2d 475.)
The appellant contends the trial court erred in allowing appellees attorney fees for the appeal from the appraisers’ award because K. S. A. 26-509, which authorizes the allowance of attorney fees as costs in condemnation appeals under certain circumstances, was not in force when the appeal was taken by the appellant.
K. S. A. 26-509 was adopted by the legislature in 1972. (L. 1972, ch. 148, § 1.) The statute took effect upon the date of its publication in the statute book, July 1, 1972. It was signed by the governor on March 14, 1972. The appeal from the appraisers’ award was perfected by the appellant on May 4, 1972, almost two months prior to the effective date of the statute. The date of the taking was May 10, 1972. The verdict was returned December 20, 1972. Hearings were held by the com! on January 26, 1973, and February 23, 1973, after which the court allowed attorney fees of $13,500.00 for the appellees’ counsel as costs under the statute.
The pertinent portion of K. S. A. 26-509 states:
“. . . Whenever the plaintiff condemner shall appeal the award of court appointed appraisers, and the jury renders a verdict for the landowners in an amount greater than said appraisers’ award, the court may allow as court costs an amount to be paid to the landowner’s attorney as attorney fees.”
The appellant contends the trial court’s action results in an unlawful retrospective application of a statute which imposes a new and additional liability; that the statute is substantive in nature rather than procedural; and that the extent of appellant’s potential liability was vested prior to the effective date of the statute.
The appellee contends the statute is procedural and was therefore properly applied to this case, even though it was pending prior to the effective date of the statute; that the legislature did not intend the statute to be applied prospectively only; and that the attorney fees are part of the costs in the case and no party has any vested right to costs until after judgment.
While there appear to be no Kansas decisions regarding the retrospective application of cost statutes to pending actions, the general rule is stated in 20 Am. Jur. 2d, Costs, § 7 as follows:
“The law as it exists at the time of the judgment which terminates the action — the time at which the right to have costs taxed accrues — rather than the law as it existed at the time when the action was commenced, generally governs the question whether costs may be allowed in an action, as well as the determination of the method of their computation. Consequently, statutes either increasing or decreasing allowable costs, including attorneys’ fees, are consistently applied to litigation pending when such statutes become effective, unless a contrary intent clearly appears from the statute. Inasmuch as a party has no vested right to costs until after a judgment has been rendered, the legislature may, during the progress of a suit, modify or change a statute regulating the allowance of costs without violating the constitutional inhibition against impairing the obligation of contracts. The rule stated has been applied to costs on appeal, in condemnation proceedings, and to an attorney’s fee taxed as part of the costs.” (p. 9.)
Whether a statute which provided that a landowner is entitled to “all costs, expenses and reasonable attorney fees” when the condemning authority fails to make payment of the full compensation within the time named by the court, should be applied to a condemnation action filed prior to the effective date of the statute was before the Illinois Supreme Court in C & W. I. R. R. Co. v. Guthrie, 192 Ill. 579, 61 NE 658 (1901). There the court said:
“. . . Such amendment merely affects the method of procedure, — the remedy, — and the law is well settled that there can be no vested right in any particular remedy or method of procedure, and that while the general rule is that statutes will not be so construed as to give them a retrospective operation unless it clearly appears that such was the legislative intention, still, when the change merely affects the remedy or the law of procedure, all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such change in the law, and without regard to whether suit had been instituted or not, unless there is a saving clause as to existing litigation. . . (p. 581.)
Kansas law is consistent with the proposition that when a change in the law merely affects the remedy or law of procedure it may have retrospective application. In Jones v. Garrett, 192 Kan. 109, 386 P. 2d 194, the court said:
“It is the law of this state that a statute which merely changes a remedy is not invalid, as there are no vested rights in any particular remedy. While generally statutes will not be construed to give them retroactive application unless it appears that such was the legislative intent, nevertheless when a change of law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted, unless there is a saving clause as to existing litigation. (Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860, 155 A. L. R. 546; Ogdon v. Gianakos, [415 Ill. 591, 596, 114 N. E. 2d 686]; Tellier v. Edwards, 56 Wn. 2d 652, 354 P. 2d 925; 50 Am. Jur. 505, Statutes § 482; 82 C. J. S. 996, 997, Statutes § 421.)” (p. 115.)
The provisions of 26-509, supra, do not attempt to create a new vested right or change the substantive law. The statute merely changes the remedy or law of procedure. There being no saving clause in the statute, the right of the landowners to recover attorneys’ fees as part of the costs, where the condemner appeals and the jury renders a verdict for the landowners in an amount greater than the appraisers’ award, may be enforced under the new statute even though the action was pending when the new statute became effective. In this case, the condemner having taken an appeal from the appraisers’ award, the right of the landowners to court costs, including an amount to be paid to the landowners’ attorney as attorney fees, did not accrue until the jury rendered its verdict for the landowners in an amount greater than the appraisers’ award.
Accordingly, the trial court did not err in exercising its discretionary power by applying K. S. A. 26-509 to this case. The constitutional mandate that “full compensation” be made in money for the taking of a right-of-way by eminent domain is fulfilled by the trial court’s order requiring the city to pay the attorney’s fees for the landowners’ attorney. (Kan. Const. Art. 12, Sec. 4.)
The appellant next contends the trial court had no evidentiary basis for the allowance of an attorney fee. It is argued that the three practicing attorneys called to testify for tire appellees all testified the contingent fee agreement (45% of the amount recovered over the original offer to purchase) was a fair and reasonable contingent fee agreement between the landowners and their attorney; that none of them were able to testify to any familiarity with the amount of time spent by the attorneys, or with the degree of novelty of legal questions presented or with the other elements inherent in professional fees, but simply that the contingent fee was within the parameters of the recommended bar schedule for contingent fee arrangements.
In Epp v. Hinton, 102 Kan. 435, 170 Pac. 987, the court was confronted with an attorney’s statutory hen, and its task was to “deter mine the amount due on said attorney’s lien, if any.” (G. S. 1915, § 485.) The evidence disclosed no agreement had been made as to the amount of the attorney fee, but there was agreement that no compensation was to be paid except on the contingency of successful litigation. Therefore, the court enumerated among the factors to be considered in making a reasonable fee allowance the contingency of successful litigation. The decision also states that while the trial court should give due consideration to the opinions of the expert witnesses as to the value of legal services, it is not controlled by such evidence, as the trial court itself is an expert on the subject and may apply its own knowledge and professional experience in determining the value of the legal services rendered.
In Wollard v. Peterson, 145 Kan. 631, 66 P. 2d 375, which was an action by an administrator de bonis non against a former administrator to collect assets and funds belonging to the estate, this court upheld the allowance of an' attorney fee. There the court recognized several elements to be considered in determining the amount of a reasonable attorney fee and quotes the following statement for assistance in such a determination:
“ ‘The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered; the labor, time and trouble involved; the nature and importance of the litigation or business in which the services were rendered; the responsibility imposed; the amount of money or the value of the property affected by the controversy, or involved in the employment; the skill and experience called for in the performance of the services; the professional character and standing of the attorney; the results secured; . . .’ (6 C. J. 750.) (See, also, 5 Am. Jur. 379.)” (p. 636.)
In Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219, the issue was whether the defendants-insurers were liable to the plaintiff-insured for attorney fees. Under G. S. 1959 Supp. 40-256 (presently K. S. A. 40-256) which provided for the allowance of a “reasonable sum as an attorney’s fee” to be recovered as part of the costs, when an insurance company has refused without just cause or excuse to pay the full amount of the insured’s loss, a contention on appeal was that the contingent fee contract was given an overriding effect by the trial court in determining a reasonable fee allowance. While the court did not find any reversible error in the trial court’s allowance, the opinion distinguished an allowance under 40-256, supra, from the situation in Epp v. Hinton, supra, where the contingency of success was a factor considered in making an attorney’s fee allowance. The court said:
“The statute (40-256, supra) provides for the allowance of a reasonable sum as an attorney fee to be recovered and collected as a part of the costs. It does not contemplate an amount in the nature of a speculative or contingent fee conditioned on winning the case, but only a reasonable fee for the appellee to pay his attorney for prosecuting the case. . . .” (p. 713.)
“The statute here in question (40-256, supra) has uniform operation and the same general considerations should govern in each case arising under it. The personal reasons why one insured may enter into a contingent fee contract should not lead a court into making an award of attorneys’ fees by taking such contract into consideration. It would be erroneous, therefore, for the trial court to consider the contingent fee contract for any reason other than to establish the employment of counsel and the purpose for which counsel were employed.” (p. 714.)
Returning to the instant case, the appellant argues that under Wolf v. Mutual Benefit Health & Accident Association, supra, the trial court could not consider the contingent fee contract as an element in determining the allowance of attorney fees. We do not agree. The situation here presented under 26-509, supra, is analogous to that in Epp v. Hinton, supra.
Under 26-509, supra, the court may allow as court costs an amount to be paid to the landowner’s attorney as attorney fees. Such an amount is designed to be over and above the jury’s verdict in the condemnation proceeding. Rut the allowance is by the statute itself made dependent upon the successful determination of the action — the rendering of a verdict by the jury in an amount greater than the appraisers’ award. Thus, the contingency of success inheres in the authorization for an allowance of an amount for attorney fees under 26-509, supra.
The original offer to the landowners of approximately $23,000.00 for their property was increased by the appraisers’ award to $45,-000.00, and by the jurys’ verdict to $64,567.66. Evidence introduced at the trial disclosed a contingency fee contract of 45% of the difference between $23,000.00 and $64,567.66. On this basis the attorney’s fee would figure roughly $18,700.00. The trial court allowed $13,500.00 as costs to be paid the landowners as and for their attorney fees.
All of the attorneys called by the parties to testify concerning the reasonable value of attorney fees support the allowance made by the court. Their opinions amply supplied the requirements of the various cases above reviewed.
The trial court was not, however, controlled by such evidence, because the trial judge is himself an expert on the subject and may apply his own knowledge and professional experience in determining the value of the legal services. Under 26-509, supra, the value of the services of the landowner’s attorney rests largely within the discretionary power of the trial court, and we cannot say undue consideration was given by the trial court to the contingency fee contract on the record here presented.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiffs-appellees, Homer D. Campbell, Gale D. Squier, and Campbell Abstract and Insurance Company, Inc. for the recovery of a real estate commission in the amount of $9,755 from the defendants-appellants, Loyd W. Fowler, Jr. and Patsy June Fowler. Plaintiffs claim they earned a commission by finding a buyer for the defendants’ real estate located in Finney County, Kansas. The facts are not greatly in dispute and are as follows: Plaintiffs are licensed real estate brokers in Garden City, Kansas. In February of 1970 they mailed to the defendants Fowler a solicitation for a real estate listing for the sale of the Fowlers’ property. The Fowlers lived in Glenwood Springs, Colorado. The title to the real estate was in the name of Mrs. Fowler. After February 18, 1970, the plaintiffs and the defendant, Loyd W. Fowler, Jr. had correspondence concerning the fisting of the land for sale. In fact all of the dealings between the brokers and the Fowlers were either by mail or telephone. Copies of this correspondence were admitted into evidence as exhibits in the case. The plaintiffs sought to obtain an exclusive listing for the sale of the property and sent Mr. Fowler a written contract to that effect which he did not sign. The parties have stipulated that the correspondence between the parties constituted a real estate listing agreement between them for the sale of Fowlers’ real estate. The terms for sale were not rigidly fixed by the Fowlers. The Fowlers suggested a purchase price of $275,000 of which the purchaser would assume a Federal Land Bank Loan in the amount of approximately $103,000, 29% of the total purchase price was to be paid as a down payment, and the balance could be paid by installments. Terms as to the rights of the present tenant were left open. It was agreed that the real estate commission should be five percent of the total sale price. The Fowlers agreed to consider any counteroffer which might be made by a reliable buyer. Thereafter the plaintiffs reported that they had shown the defendants’ land to prospective purchasers.
On October 26, 1970, the plaintiffs wrote a letter to Mr. Fowler enclosing an unsigned proposed contract dated October 23, 1970, for the purchase of the land by one B. F. Cornett for the sum of $192,000. This contract provided for the payment of the sum of $35,000 on or before December 1, 1970. By its specific provision time was made of the essence of the contract. The contract provided that the purchase was subject to the sale of Cornett’s Knox County, Texas, land which was currently being sold under contract and would be completed prior to final settlement and that if the buyer’s land was not sold, then the offer was to become null and void and the down payment refunded to the purchaser. This contract was rejected by the Fowlers and was never signed by either party.
On October 31, 1970, the plaintiffs submitted to the Fowlers a second proposed written contract dated October 31, 1970. This contract increased the purchase price to $196,967.94 and provided for a down payment of $5,000 earnest money and a payment of $35,000 on or before November 15, 1970. This contract also contained a specific provision that time is of the essence of this contract and stated that the transaction should be consummated on or before November IS, 1970. The contract also contained the provision that the offer was subject to the sale of the buyer’s Knox County, Texas, land and that such sale was to be completed prior to the closing of this sale. Mr. Fowler did not accept the contract as written but instead inserted an additional clause in the contract giving the tenant, Glenn Stover, the right to enter upon the land to farm and harvest wheat. Mr. Cornett had signed the written contract prior to the time it was submitted to the Fowlers. Mr. Fowler signed it only after adding the new provision just discussed. Mr. Cornett refused to accept the changes inserted in the contract by Mr. Fowler and the agreement was never consummated.
On November 9, 1970, the plaintiffs prepared and mailed to the Fowlers a third proposed real estate contract dated November 9, 1970, for the purchase of the real estate by B. F. Comet for the amount of $195,117.94. Enclosed with the proposed contract were a general warranty deed and a payment authorization form. This proposed contract specifically provided for the payment of $35,000 on or before November 15, 1970, and that the transaction shall be consummated on or before November 15,1970. It specifically stated-that time is of the essence of this contract. This offer was also stated to be subject to the sale of the buyer’s Knox County, Texas, land. Mr. and Mrs. Fowler signed the contract together with the general warranty deed and payment authorization form and mailed them to their attorney, Dale H. Corley, on or about November 17, 1970. It is important to note that this contract form was never delivered to the plaintiffs nor to the proposed purchaser B. F. Cornett. This document contained the Fowlers’ signatures but was never signed by B. F. Cornett.
The undisputed evidence showed that the Fowlers instructed Mr. Corley to review the contract and to revise the same, in particular with respect to the closing date. Mr. Corley then proceeded to prepare a new contract of sale dated November 25, 1970, for the purchase of the real estate by B. F. Cornett for the previously agreed figure of $195,117.94, together with a promissory note, a real estate mortgage, and a receipt and release form. These papers along with other papers were mailed by Mr. Corley to the Fowlers for execution on November 25, 1970. They were signed by the Fowlers and were returned to Mr. Corley on or about November 27, 1970. The specific provisions of this proposed contract should be noted. The sum of $5,000 in cash as earnest money was to be paid forthwith and an additional sum of $35,220.50 was to be paid on or before December 1, 1970. The date for the closing of the contract was stated to be December 1, 1970. The proposed contract further provided that in the event the defendant should fail to pay the balance of the purchase price due on December 1, 1970, upon the closing of this transaction, the sellers may at their option cancel the agreement and the earnest money is to be forfeited as liquidated damages. As in the case of the other proposed contracts this contract specifically provided that “time is of the essence of this transaction.” The evidence was undisputed that this contract was dictated by Mr. Corley in his office in the presence of one of the plaintiffs, Gale D. Squier, after the December 1 closing date was fully discussed.
After the proposed contract dated November 25, 1970, had been signed and retened to Mr. Corley by the Fowlers, Mr. Corley was advised by plaintiff, Gale D. Squier, that Cornett could not perform the contract on December 1, 1970. Mr. Corley stated that he did not know how long the Fowlers would wait for their money. On December 4, 1970, Mr. Fowler sent the plaintiffs a telegram stating as follows:
“Due to December 1 closing date past I hereby withdraw my offer on Finney County Kansas land.”
On December 11, 1970, the plaintiffs notified Mr. Corley by telephone that B. F. Cornett had called them and advised them that money would be available from the sale of his Texas land on December 17, 1970, and he would be ready to close the November 25 contract at that time. Plaintiffs offered to advance $5,000 on the purchase price on behalf of Mr. Cornett if desired by the defendants prior to December 17, 1970. Plaintiffs at that time were advised by Mr. Corley that the Fowlers had sold their real estate to a third party. The evidence was undisputed that Mr. Cornett did not have funds available to make the $35,000 payment required under all of the proposed contracts until December 11, 1970.
There was evidence to show that in the early or middle part of November 1970, the Fowlers were contacted by another real estate broker, Mr. Atherton, concerning the sale of this land. According to Fowler he told Atherton that the land was for sale and there was no definite contract on it because they had not come to a meeting of the minds in all aspects of it yet. Mr. Atherton negotiated a sale of the land to another buyer for the sum of $197,500.
The case was tried to the court sitting without a jury. The trial court entered judgment in favor of the plaintiffs allowing them a broker s commission in the amount of $9,755 plus interest or a total judgment of $11,057.51. The trial court found that the plaintiffs were employed by the defendants as real estate brokers; that throughout the transaction Mr. Fowler was acting on behalf of himself and as agent of his wife, Patsy June; and that the plaintiffs had found a buyer who was ready, willing and able to buy the property upon terms and conditions satisfactory to the defendants. In addition the trial court made the following specific findings of fact:
“4. If total closing and consummation of the transaction between defendants and the buyer, B. F. Cornett, by December 1, 1970, was ever a condition of their agreement, such condition was imposed by defendants after a ready, willing and able buyer had been found by plaintiffs.
“5. Defendants tried to keep open the option, right at the end of this transaction, of turning it down by drawing papers that seemed to call for a December 1 closing date but which do not actually clearly indicate that closing by December 1, was an absolute requirement, in order that they could take their choice of the particular deals available to them.
“6. Plaintiffs earned the commission in the amount stated in the prayer of the Petition and, as a matter of law, having found a buyer ready, willing and able to buy the property under the conditions that were satisfactory to the defendants, plaintiffs are entitled to recover their full commission. It was not required that plaintiffs finally consummate the transaction with the new terms which were imposed.”
The Fowlers have appealed to this court.
The primary issue to be determined on this appeal is whether or not under the evidence presented in this case the plaintiffs as brokers found a buyer who was ready, willing and able to buy the property upon terms and conditions satisfactory to the defendants as owners of the real estate. The evidence is undisputed that the defendants employed the plaintiffs as brokers to procure a buyer for their land for a price and upon terms acceptable to the defendants. The listing was not exclusive. For such service the defendants agreed to pay the plaintiffs a real estate commission of five percent. The plaintiffs contend that B. F. Cornett was a buyer procured by the plaintiffs who was ready, willing and able to purchase the Fowlers land for a price and upon terms acceptable to the defendants. They contend that the buyer and the sellers had a meeting of the minds and that a binding and enforceable contract was made between buyer and sellers. Plaintiffs take the position that a fixed closing date of either November 15 or December 1, 1970, was not contemplated by the parties nor a firm obligation of the buyer under the contract. They contend that the agreement was conditional only upon the sale by Mr. Cornett of his Knox County, Texas, land and that when the Texas land was sold Mr. Cornett would be bound to make the payments under his agreement and not before.
The defendants, Mr. and Mrs. Fowler, contend that there was never a meeting of the minds between them and B. F. Cornett; that there was never a consummated contract signed by the buyer and sellers; that there were merely exchanges of offers and counteroffers which were never accepted. They specifically urge that a dosing date of either November 15 or December 1, 1970, was made an essential term in each and every proposed contract; that they were ready, willing and able to close a contraot on that basis; and that the plaintiffs failed to produce a buyer who agreed or was able to comply with their terms.
We believe that this case must be determined on the basis of whether or not B. F. Cornett, as prospective buyer, and Mr. and Mrs. Fowler, as prospective sellers, ever had a meeting of the minds on terms satisfactory to both parties. It is dear from the evidence that the buyer and sellers were in agreement as to the purchase price to be paid and the general method for the payment thereof in installments. The point of contention is whether or not Mr. Cornett and the Fowlers agreed on a fixed closing date for the transaction. We have concluded that under the undisputed evidence in this case a closing date of December 1, 1970, was one of the fixed terms required by the sellers, Mr. and Mrs. Fowler, before they would enter into a contract of sale with Mr. Cornett. We further hold that there is no substantial competent evidence in the case to support the findings of the trial court to the contrary. We have reached this condusion because of evidence which stands uncontradicted. In the first place in each and every proposed written contract submitted by either the brokers or by Mr. Corley there is an express provision for the payment of $35,000 by the buyer on or before either November 15 or December 1, 1970. Every one of the proposed contracts specifically provided that time is of the essence of the contract. A provision in a contract for the sale of real estate making the time of payment of the purchase price of the essence of the contract is to be respected and enforced by the courts like any other stipulation between the parties. (Peterson v. Davis, 63 Kan. 672, 66 Pac. 623.) The provisions of a written contract requiring payments on a fixed date and providing that time is of the essence of the contract must be given the effect stated in their contract and that they had the intention which its terms import. (Schnug v. Schnug, 203 Kan. 380, 454 P. 2d 474.) It is not the function of courts to make contracts, but to enforce them as made (Springer v. Litsey, 185 Kan. 531, 345 P. 2d 669); nor is it within the province of a court to reform an instrument by rejecting words of clear and definite meaning and substituting others therefor. (Drilling, Inc. v. Warren, 185 Kan. 29, 340 P. 2d 919.) It is true that where a written contract provides that time is of the essence a vendor of real property may by his own actions waive his right to enforce such a provision. (Gustason v. DeHaven, 134 Kan. 324, 5 P. 2d 1095.) Furthermore such a provision may be nullified where mutual mistake or fraud is established. In this case there is no evidence nor is there a claim that the express provisions of the written contract have been waived by the defendants. Likewise there is no evidence of mutual mistake or fraud. We find no basis for the trial court’s finding that the specifically stated closing date and time for payment was not one of the essential terms required by the sellers.
It must be emphasized here that the brokers themselves prepared and sent to the Fowlers the three proposed contracts dated October 23, October 31 and November 9, 1970. It was the plaintiffs who provided the contractual provisions that the transaction was to be consummated on or before November 15, 1970, and that time was of the essence of the contract. The law simply cannot permit a broker to submit a contract so providing to his principal and then permit the broker to take the position that the written contract does not mean what it expressly states. This is especially true where the broker and his principal have not had the opportunity to discuss the matter face-to-face and all of the conversations between them have been either by correspondence or telephone. Furthermore as we read the record the testimony of all of the witnesses was to 'the effect that the Fowlers were two years in default on their mortgage payments, that there was a danger of foreclosure of the mortgage, and that the Fowlers urgently needed money, which necessitated the sale being closed as soon as possible. This was the testimony of Mr. Fowler, Mr. Corley and that of the plaintiff, Gale D. Squier. Mr. Squier testified that in the pro posed October 23 contract the closing date was set at November 15 and that a closing date was specifically discussed with respect to each one of the contracts. The evidence is undisputed that the proposed buyer, B. F. Cornett, never had the sum of $35,000 available to make a payment either on November 15, 1970, or December 1, 1970, and that he did not have the money until December 11, 1970.
On the basis of the evidence before us here we think it clear that the parties did not have a meeting of the minds. Obviously B. F. Cornett was never in a position where he could comply with the provision of any of the proposed contracts to pay the sum of $35,000 on either November 15 or December 1, 1970. If he ever did agree to such a provision then he fails to meet the legal standard of a “ready, willing and able” buyer because he did not have either cash in hand nor was he able to command the necessary funds to complete the purchase within the time fixed for performance. (Winkelman v. Allen, 214 Kan. 22, 519 P. 2d 1377.)
For the reasons set forth above the judgment of the district court is reversed and judgment is entered in favor of the defendants-appellants.
Fromme, J., not participating.
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The opinion of the court was delivered by
Fatzer, C. J.:
The defendant, Richard L. Jones, was convicted of driving with a suspended driver’s license in violation of K. S. A. 1973 Supp. 8-262 (a), and sentenced as a felon to confinement for not less than one nor more than five years.
The defendant was first convicted for driving with a suspended license on March 30, 1971. The statute then in effect was K. S. A. 1970 Supp. 8-262 which provided in part:
“(a) Any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do is canceled, suspended or revoked shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not more than six (6) months and there may be imposed in addition thereto a fine of not more than five hundred dollars ($500). . . .” (L. 1970, Ch. 52, § 1.)
The 1972 Legislature amended the above law, effective March 31,1972, which presently is K. S. A. 1973 Supp. 8-262 (a), and reads in part:
“Any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do is canceled, suspended or revoked shall be guilty of a class B misdemeanor on the first conviction, a class A misdemeanor on the second conviction and for third and subsequent convictions shall be guilty of a class E felony. . . .”
On October 16, 1972, Jones was convicted a second time for driving with a suspended license, and was apprehended a third time for the same offense on December 23, 1972. At his trial for the third offense, defendant stipulated to his two prior convictions and that on December 23, 1973, he was driving a motor vehicle while his license was suspended. As indicated, he was convicted and sentenced as a felon pursuant to K. S. A. 1973 Supp. 8-262 (a).
The controlling question is whether our statute (K. S. A. 1973 Supp. 8-262 [a]) is a form of an Habitual Criminal Act, or a declaration of a distinct and separate criminal offense. The defendant argues the statute defines a separate and distinct criminal offense, and relies upon our decision in State v. Walden, 208 Kan. 163, 490 P. 2d 370. The point is not well taken.
In Walden the defendant contended K. S. A. 1970 Supp. 21-3708, entitled “Habitually giving worthless checks,” was an habitual criminal statute because the statute authorized increased punishment after showing prior convictions. Finding the contention without merit, this court said:
“. . . [T]he statute in question . . . does not merely provide for the enhancement of punishment in the case of proven prior convictions; it defines in plain and unambiguous language the elements of a separate and distinct offense and declares it to be a class D felony.
“Habitual criminal acts do not involve 'a charge of commission of a criminal offense; they involve a status rather than the commission of a separate offense. (39 Am. Jur. 2d, Habitual Criminals, Etc., § 2, pp. 308-310; State ex rel. Ringer v. Boles, 151 W. Va. 864, 157 S. E. 2d 554.)
“The clear import of K. S. A. 1970 Supp. 21-3708 is to define the elements of a separate offense which may be committed under subsection (1) (a) by giving a' worthless check within two years after two prior convictions or under subsection (1) (b) by giving two or more worthless checks on the same day. Subsection (2) specifies the allegations necessary to charge a violation of the act and sets forth a presumption with respect to subsection (1) (b). Subsection (3) declares the offense to be a class D felony.
“There is no mention of sequence in the provisions of subsection (1) (a), nor are there any requirements concerning either sequence or convictions in subsection (1) (b). An examination of the statute in its entirety clearly reveals the intendments to define a separate and distinct offense based upon the elements of giving checks in the manner and under the circumstances described in subsections (1) (a) or (1) (b)(l. c. 166.)
The Legislature has the power to define and prescribe punishment for criminal offenses. (State v. Latham & York, 190 Kan. 411, 422, 375 P. 2d 788.) The plain and unambiguous language used in K. S. A. 1973 Supp. 8-262 (a) requires the state prove the person charged has driven a motor vehicle on a public highway, and has done so when his privilege to operate a motor vehicle was canceled, suspended or revoked. A showing of prior convictions goes only to the question of defendants status. The prior conviction or convictions gives the defendant a classification, and the statute prescribes sequentially increased punishment for repeated offenders. A repeating offender is not punished for the prior offense or offenses, but the Legislature has declared that repeated violations justify the enhanced penalty. (State v. Parise, 117 Kan. 106, 230 Pac. 304; Cochran v. Simpson, 143 Kan. 273, 53 P. 2d 502; State v. Ricks, 173 Kan. 660, 250 P. 2d 773; State v. Wilson, 198 Kan. 532, 426 P. 2d 288; State v. Walden, supra.) K. S. A. 1973 Supp. 8-262 (a) is a self-contained, specific habitual criminal statute.
Defendant next contends the retrospective application of K. S. A. 1973 Supp. 8-262 (a) renders it an ex post facto law, and denies him equal protection and due process of law. The contention does not require extended discussion. The recidivist statute in question is neither unconstitutional as an ex post facto law nor denies defendant equal protection or due process of the law. (State v. Woodman, 127 Kan. 166, 272 Pac. 132; Thompson v. State, 195 Kan. 318, 403 P. 2d 1009; Fairbanks v. State, 196 Kan. 650, 413 P. 2d 985; 2 Hatcher’s Digest [rev. ed.], Criminal Law, § 359, p. 259; Anno: Increased Penalty-Prior Offense, 139 A. L. R. 673, Supp. Anno, in 58 A. L. R. 20, 82 A. L. R. 345, 116 A. L. R. 209 and 132 A. L. R. 91.)
Comments in defendant’s brief regarding matters not presented to, nor determined by, the district court will not be considered by this court on appeal. (Jones v. State, 213 Kan. 248, 515 P. 2d 745.) An issue will not be considered upon appeal where its existence depends upon facts which do not appear in the record on appeal. (State v. Brothers, 212 Kan. 187, 510 P. 2d 608.)
We have carefully examined the record and find no error was committed by the distriot court.
The judgment is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
This is an action for breach of a contractual obligation to drill the second of two exploratory oil wells in Ness County, Kansas. A claim in the second count of the petition was dismissed by plaintiff as shown in the pre-trial order. Therefore, we are not concerned with this claim of fraud against John Volosin, president of the Aspen Drilling Company, a corporation. The claim for damages arising from the breach of the drilling agreement was tried to the court and judgment was entered in favor of the defendant, Aspen Drilling Company (Aspen). The trial court found that a drilling agreement was entered into by the parties, that Aspen breached the agreement by failing to drill the second exploratory well but that plaintiff s evidence failed to prove the measure of damages. Plaintiff has appealed.
A few background facts may be helpful. We will continue to refer to C. E. Denman as the plaintiff. Plaintiff put together a block of leases consisting of 1280 acres in Ness County, Kansas. The leases were four-year leases located in unproven “wildcat” territory. In July, 1969, plaintiff and Aspen signed a drilling agreement by which Aspen agreed to purchase the leases and pay plaintiff $4.00 per acre or a total of $5,120.00. In the assignment of these leases plaintiff reserved an overriding royalty whereby in event of production plaintiff was to receive on this royalty one-sixteenth (⅟16) of the seven-eighths (⅞) working interest. The leased acreage was divided into two blocks by the parties to the drilling agreement which blocks will be referred to as “A” and “B”. Aspen agreed to drill a test well on each block to test the Mississippi lime formation. Both test wells were to be completed on or before December 31, 1969. Under the agreement Aspen bound itself to pay for the leases and drill the two test wells.
Aspen paid the $5,120.00 for the leases and drilled a dry hole on block “A”. It thereafter turned the leases back to plaintiff and failed or refused to drill the second test well. Plaintiff then negotiated a drilling agreement with Thunderbird Drilling Company and assigned these same leases in exchange for an agreement to drill on block “B”. Thtmderbird refused to give plaintiff an overriding royalty interest. Before the present action was tried Thunderbird drilled a producing well on block “B”. The well was sis or eight miles from any proven production.
The issues for trial were delineated in a pre-trial conference at which Aspen contended that the customary practice in the oil exploration business gave it the right to tender back the leases and discontinue further drilling, and that, since plaintiff accepted the leases, this terminated any further obligation of Aspen under the drilling contract. If no such custom was allowed to be proven because of the provisions of the contract, Aspen contended in the al ternative that the court should reform the drilling contract to conform to the understanding of the parties.
After hearing all evidence introduced at the trial the court made specific findings against the defendant Aspen on these issues. The court found no grounds for reformation, determined that the drilling contract as unambiguous and held that Aspen was bound by the terms of the drilling agreement.
There is evidence in the record to support these findings and no cross-appeal has been taken by Aspen. The defendant Aspen cannot now question these findings on appeal. (See Gould v. Robinson, 181 Kan. 66, 70, 71, 309 P. 2d 405; and Reinecker v. Board of Trustees, 198 Kan. 715, 722, 426 P. 2d 44.)
The plaintiff on appeal contends, as he did in the court below, that tire trial court erred in refusing to allow damages in an amount equal to the cost of drilling the well on block “B”. There was evidence introduced to establish the cost of drilling the well was between $18,000.00 and $20,000.00. To support his claim for damages in an amount equal to the cost of drilling a well plaintiff cites Gartner v. Missimer, 178 Kan. 566, 290 P. 2d 827, and In re Estate of Stannard, 179 Kan. 394, 295 P. 2d 610. In the alternative, plaintiff contends, if he is not entitled to the cost of drilling the well, the court should have allowed him the value of the lost overriding royalty.
There is considerable confusion in the law concerning proof of damages for breach of drilling contracts. The confusion arises from some of the terminology used in the Kansas cases, as well as in the cases of other states. (See cases collected in Anno: 4 A. L. R. 3d 284-313.) It should be understood that the rule as to the measure of damages for breach of contract is the same in drilling contracts as it is in other contracts. In Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 512 P. 2d 379, the rule is iterated as follows:
“. . . The measure of damages recoverable for a breach of contract is limited to such [damages] as may fairly be considered as arising in the usual course of things from the breach itself, or as may reasonably be assumed to have been within the contemplation of the parties as the probable result of such a breach.' [Citations omitted.] The evidence allowed to support damages for breach of contract is the best evidence obtainable under the circumstances of the case to show the natural and ordinary consequences of the breach and which will enable the court or the jury to arrive at a reasonable estimate of the loss which resulted. [Citations omitted.]” (p. 738.)
The measure of damages for a breach of contract are those damages which naturally arise from the breach itself or which are reasonably supposed to have been within the contemplation of the parties at die time die contract was made. (Cain Shoes, Inc. v. Gunn, 194 Kan. 381, 383, 399 P. 2d 831.)
The confusion in the cases comes from trying to equate the measure of damages with the various determinations of what is the best evidence obtainable under the circumstances of a particular case to show the natural and ordinary consequences of a particular breach. For instance, in Oil & Gas Co. v. Howerton, 111 Kan. 304, 206 Pac. 909, this court determined the best evidence to establish the measure of damages flowing from a breach of a drilling contract under the circumstances of that case was evidence which established that plaintiff had expended $4,000.00 in reliance on defendant completing the contract and that plaintiff in further reliance had transferred to the defendant certain other leases which had been sold by defendant for an additional $10,000.00 before the breach occurred. The measure of damages which that evidence tended to establish was the same measure of damages iterated above in Easton Supply Co., Inc., i. e., damages as may fairly be considered as arising in the usual course of things from the breach itself which would enable the court or jury to arrive at a reasonable estimate of the loss which resulted.
In Artwein v. Link, 108 Kan. 393, 195 Pac. 877, this court held that evidence of any increase in value of leases during the period a drilling contract was being carried out was mere conjecture and too speculative to prove the measure of damages for a breach of the drilling contract. It was the evidence of which the court disapproved, not the measure of damages. In the Gartner and the Stannard cases evidence of the cost of drilling a well was held the best evidence obtainable under the facts and circumstances to establish the measure of damages for failure to drill the wells. In Gartner we note there were proven wells on all sides of appellee’s land and at the time of the trial no well had been drilled thereon. In Stannard the drilling agreement covered a forty acre lease in Oklahoma and the question decided was the correctness of the trial corut’s order striking allegations as to the duty of an injured party to mitigate. The lease had expired and no well was drilled under the Stannard lease.
The measure of damages in all these cases was the same, i. e., the damage which arose naturally from the breach itself. The evidence necessary to establish the measure of damages may be different but the measure of damages remains the same.
So in the present case we must ask ourselves if the evidence introduced to establish the cost of drilling a well is the best evidence obtainable under the circumstances of this case to show the natural and ordinary consequences of the breach and to enable the court to arrive at a reasonable estimate of the loss which resulted. (See Gartner v. Missimer, supra; Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., supra.)
The answer is obviously no, for the plaintiff did get the oil well drilled on block “B” by accepting a return of the leases from Aspen and by obtaining a new drilling contract from Thunderbird Drilling Company in exchange for the leases. Plaintiff did receive, as a result of his efforts to mitigate damages, all that he contracted to receive from Aspen except the overriding royalty on this acreage. Therefore, the trial court did not err in holding that evidence of the cost of drilling a well was not the best evidence obtainable, under the circumstances of this case, to show the natural and ordinary consequences of defendant’s breach.
The plaintiff next contends that he should have been awarded damages for the loss of the overriding royalty which he sacrificed in order to obtain the drilling contract from Thunderbird Drilling Company. Under the principles of law set forth above, evidence of the value of the royalty interest would appear to be proper to establish the measure of damages which flowed from the breach. However, in order for evidence to be sufficient to warrant recovery of compensatory damages there must be some reasonable basis for computation which will enable a court or jury to arrive at an approximate estimate thereof. (Venable v. Import Volkswagen, Inc., 214 Kan. 43, 519 P. 2d 667. See also Artwein v. Link, supra, and Myers v. Shell Petroleum Corp., 153 Kan. 287, Syl. ¶ 7, 110 P. 2d 810.)
There was evidence in the record that the Thunderbird well had an initial production of 80 barrels. ,There was no evidence, however, as to how many barrels the well would be allowed to produce under state regulation or how long the well might be expected to produce. There was no evidence of the market price of oil. A petroleum geologist, who was acquainted with this particular area, testified that production in this area came from small pools which varied so much in potential production that it was impossible for him to estimate the potential of the Thunderbird well. He testified that all proven production from which well potential could be figured was over six miles away, was coming from different production zones and could not be considered comparable. There was no evidence of the market value of the overriding royalty at the time the drilling contract was negotiated, assuming such interests were being bought and sold in the market place.
An oil operator doing business in this neighborhood was called as an expert witness by plaintiff. On cross-examination by defendant’s attorney he testified as follows:
"Q. Just one question, you have testified concerning your experience with oil production in this area?
“A. Yes, sir.
“Q. And is it your opinion that the estimate of well production is speculative and conjecture as to what a certain well will make?
“A. You mean the recoverable oil?
“Q. Yes.
“A. Very speculative.
“Q. And it can be making eighty or ninety barrels a day today and ten barrels tomorrow and maybe nothing the next day?
“A. It has often happened.”
As previously stated there must be some reasonable basis for computation which will enable the court or jury to arrive at an approximate estimate of compensatory damages. We can find no evidence in the record which would establish a value for the overriding royalty lost by plaintiff because of tire breach.
In summary we hold the evidence of the cost of drilling a well would not establish the measure of damages for breach of the drilling contract under the facts and circumstances of the present case and that the evidence introduced at the trial was insufficient to establish the value of the overriding royalty interest lost by plaintiff as a result of the breach.
Accordingly, the judgment is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
This appeal stems from a jury trial which concerned a collision at a railroad crossing in the city of Palco, Kansas. Plaintiff was a passenger in a car driven by his mother and he suffered severe and permanent injuries. The train was being operated by the defendant William H. Hagen, engineer, and the defendant Colin T. Normington, conductor. Suit was filed on behalf of the plaintiff against the Union Pacific Railroad Company and against the employees who were operating the train. Negligence in the operation of the train was alleged. A jury absolved the railroad and both employees of any negligence in answers to special questions. The plaintiff appeals.
The city of Palco, population 600, is located on a branch line of the railroad in northwest Kansas. The railroad has imposed a maximum speed limit of 30 miles per hour (mph) on its trains while using this branch line because of the condition of the track. Plaintiffs mother was driving her vehicle in a westerly direction on Douglas Street and she approached the crossing at 10 to 15 mph. The train was approaching this crossing from the northwest at a speed of from 25 to 32 mph. The train’s headlight and automatic bell ringer were on, the whistle was blowing, and there were no mechanical defects noted in connection was the engine. This was an open crossing without control devices, mechanical or otherwise.
As a motorist approaches the crossing from the east there is a visible crossbuck sign indicating two sets of track. The first set is the house track and the second, which lies further west, is the main track. As a motorist approaches from the east on Douglas Street there is a building to the right of the crossbuck sign. The corner of the building obstructs the reciprocal line of sight between a motorist and a crew member operating a train until the automobile has reached a point 90 feet from the main track. At that point a motorist has unlimited vision of the track to the northwest. There was testimony that a motorist traveling at 15 mph could stop a car well within 90 feet. Mrs. Smith, the driver of the car, had lived in Palco for seven years.
The collision occurred at 1:07 p. m. on February 12, 1969. Plaintiffs mother did not see or hear the train until just before impact. Hiere was evidence from which tifie jury might find there was no way the train crew could stop the train at the speed it was traveling in time to avoid the collision after the car first came into view. This was essentially a fact case which went to the jury and the jury absolved the defendants of negligence, so we need not labor the sufficiency of the evidence.
The plaintiff in seeking a new trial urges various points of error on appeal. We will consider these points and fill in what facts are necessary as we go along.
Plaintiff asked for a new trial on the ground of misconduct of the jury and of the parties. He alleged in his motion that the defendants Hagen and Normington talked to some of the jurors during a recess in the trial and thereby deprived plaintiff of a fair trial.
At the hearing on the motion plaintiff elicited testimony from William James Rogers who testified he overheard the defendants Hagen and Normington make statements within the hearing of members of the jury during a trial recess to the effect that defendants were only doing their job, that they were just common people doing their job when they got hit and now were being sued and taken to trial, that they couldn’t understand why they were here, that a decision against the railroad would' probably result in their jobs and that they would be ruined financially.
William James Rogers was a 21 year old client of plaintiff’s attorney. Rogers had been injured in another accident and was currently being represented by plaintiff’s attorney in a pending lawsuit. Rogers testified that his attorney decided it would be a good idea for him to come and learn what a trial was all about, so he was present during the first week of trial when the incident was alleged to have taken place.
Normington, Hagen and Hagen’s wife testified in response to the testimony of Rogers that no such statements were made during this time.
The trial judge listened to all of the testimony and in ruling on the motion said:
“With reference to James Roger’s affidavit, and all testimony in connection therewith, the Court finds there is no showing of any misconduct on the part of the jury, or jurors, or parties to this litigation which could have any effect on the deliberations of the jury and could have no effect on their deliberations and their outcome. The same is unsubstantiated by any corroborating evidence and that there is no showing it is prejudicial in any way. . .
K. S. A. 1973 Supp. 60-259 (a) authorizes the granting of a new trial on all or a part of the issues when it appears that the rights of a party have been substantially affected by misconduct of the jury or of a party, or the verdict was procured by the corruption of the party obtaining it. The trial court has a wide discretion in this area. This court on appeal will not reverse an exercise of judgment by a trial court which depends upon the credibility of witnesses who testify on a motion for new trial. A clear abuse of judicial discretion is necessary for a reversal. (Timmerman v. Schroeder, 203 Kan. 397, 400, 454 P. 2d 522; Sulkis v. Zane, 208 Kan. 800, 802, 494 P. 2d 1233.) There can be no abuse of judicial discretion if a court listens to conflicting evidence on the subjects of misconduot of the jury and of corruption of a party and con scientiously finds from the evidence that such misconduct or corruption was not established.
The second point concerns a similar claim of misconduct of a juror. It was also based upon the testimony of William James Rogers introduced on the motion for new trial.
The trial was lengthy and covered ten full days during the last of May and the first part of June. During the latter part of the trial plaintiff’s counsel spent considerable time reading depositions to the jury. At one of the periods of recess a juror by the name of Markwell expressed dissatisfaction in the time being consumed in hearing the case. Witness Rogers described Markwell’s expression as a “violent temper eruption”. The appellees suggest that this is a gross overstatement totally unsupported by other evidence. However, it appears that the juror did seek out the judge in chambers and complained to him about the length of the trial. The attorneys were then called into chambers and the judge suggested to the attorneys that the juror could be excused if the parties would agree to try the case to the remaining eleven jurors. The appellees refused, which was their right and the trial continued without objection by plaintiff. It was not until after the adverse verdict that plaintiff-appellant registered his complaint over the incident.
In Nelson v. Hardesty, 205 Kan. 112, 468 P. 2d 173, it is held:
“Where a party or his counsel has knowledge of the act or occurrence complained of, the failure to bring it to the court’s attention or to request remedial action until after a verdict is returned, operates as a waiver thereof as a ground for a new trial.” (Syl. ¶ 2.)
It is true in the present case the court was made aware of die incident, but the appellant, aware of the incident, saw fit not to request remedial action until after a verdict was returned. Under Nelson this might be held a voluntary choice and waiver precluding consideration of the incident as a ground for new trial. Here, the trial court specifically found there was no showing that the incident had any affect on the deliberations of the jury or on the outcome of the case. The trial court knew of the incident first hand and heard further evidence on the motion for new trial. The court’s determination that plaintiff’s rights were not prejudicially affected was a discretionary judgment which we decline to reverse on appeal. No abuse of discretion has been shown.
Appellant’s third point on appeal concerns the problem of sleeping jurors. The contention of appellant was again supported on argument of the motion for new trial by the testimony of William James Rogers but his testimony was further buttressed by affidavits. In ruling on the motion, the court recalled but one such incident at which time he announced a recess to alleviate the juror’s drowsiness. The court found this had no significant effect on the outcome of the trial and no showing of prejudice was made. The court noted that none of the attorneys made any request concerning sleeping jurors during the trial. The rule in Nelson v. Hardesty, supra, is applicable. See also State v. Jones, 187 Kan. 496, 357 P. 2d 760, and State v. Kimmel, 202 Kan. 303, 448 P. 2d 19, where similar contentions concerning sleeping jurors are discussed. The trial court can better determine whether the irregularity charged had prejudicial effect upon the substantial rights of the appellant, and no abuse of discretion appears in the record.
Appellant’s fourth, fifth and sixth points of error concern instructions given by the trial court. Appellant does not contend any of the instructions were erroneous statements of the law. He argues that certain instructions should not have been given under die facts of this case. Twenty separate instructions were given. The instructions here questioned are as follows:
No. 10. (defining proximate cause and stating there may be more than one proximate cause);
No. 11. (defining negligence generally);
No. 12. (defining contributory negligence generally);
No. 13.
“You are instructed that any negligence or contributory negligence, if any, of the plaintiff’s mother Shirley Smith in the operation of the automobile, cannot be imputed to the minor plaintiff Rodnie Smith, and cannot be considered as negligence or any fault of Rodnie Smith.
“Rodnie Smith, age five at the time, was entitled to rely on the driver’s operation of the car without imputing the driver’s negligence, if any, to the plaintiff passenger.
“With respect to the suggestion of contributory negligence, you are instructed a child under seven years of age is conclusively presumed to be incapable of contributory negligence.
“Therefore, you are instructed that Rodnie Smith, being five years of age at the time of the collision, was free from negligence or contributory negligence."
No. 14. (setting forth the duties of the railroad and its employees with regard to the issues raised at the trial); and
No. 15.
“It is the duty of one driving an automobile upon a public highway, in the exercise of reasonable and due care, to look ahead and see vehicles and objects in the line of his vision, and in case of an accident, he will be conclusively presumed to have seen what he could and should have seen in. the exercise of reasonable and ordinary care under the facts, conditions and circumstances then and there existing.”
At the trial appellant requested two instructions, one on non-imputation of negligence, and the second on concurrent causes which combine to produce an injury. The court submitted its instructions to counsel beforehand, together with forms for special questions. Before submitting the same to the jury the court asked: for objections of counsel. Plaintiff made but one objection which was as follows:
“Mr. Turner: Plaintiff has one objection and that is to instruction number fifteen on the duty of the driver of an automobile and we object on the- ground and for the reason that that is not an issue under the facts in this case. The duty of the driver of the vehicle is on Shirley Smith and she is not a party to this case. Rodnie Smith, the passenger, is incapable of negligence and.there can be no imputation of negligence of Shirley Smith to Rodnie. The negligence of Shirley Smith is not an issue in this case.”
This objection was overruled by the court.
K. S. A. 60-251 (b) states:
“(b) When waived. No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity, shall be given to make the objections out of the hearing of the jury.”
Under the limitation imposed by this statute we will confine our discussion to the one objection made by appellant which relates to giving instruction No. 15. This instruction was a general “due care” instruction relating to the driver of the automobile. It was not an erroneous statement of law. Instruction No. 13 clearly stated that any contributory negligence of the mother could not be imputed to the 5 year old passenger. The jury was instructed that the plaintiff must be considered free from negligence or contributory negligence. Regardless of non-imputation of negligence, due care on the part of the driver of the automobile and the due care instruction were necessary and proper to determine the question of proximate cause. In addition, the jury’s answers to special questions absolved the defendants of any negligence which was a proximate cause of the collision. Therefore the case was determined on the issue of lack of negligence of the defendants.
What is said in Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 490 P. 2d 619, applies to appellant’s contention in the present case. In Staudinger we say:
“A case on appeal will not generally be reversed on exceptions to instructions which do not relate to the issue upon which the cause was determined and an error in failing to instruct a jury on the issue of imputation of negligence to a plaintiff is harmless and not prejudicial to plaintiff when there is a jury finding that defendant was not guilty of negligence.” (Syl. ¶ 8.)
The court below did not fail to instruct on non-imputation of negligence in our present case but the rule of law would equally apply to error such as an instruction defining contributory negligence or the duty of the driver. See Worden v. Tri-State Insurance Company, 347 F. 2d 336 (10 CA) and cases cited in Staudinger at page 110. Considering the instructions as a whole, and in light of the answers to special questions absolving defendants from negligence, we can find no prejudicial error in the instructions which would justify reversal.
Appellant’s next contention of error, based on failure to submit instructions requested by him, is covered by what is said in Bott v. Wendler, 203 Kan. 212, 453 P. 2d 100, as follows:
“There is nothing in the record to indicate the defendants ever made any objection of the district court’s refusal to submit the requested instructions as required by 60-251 (b). A party may not complain of error on the part of the district court in failing to give a requested instruction unless after the request is denied but before the jury retires to consider its verdict, he states ‘distinctly the matter to which he objects: and the grounds of his objection,’ unless the instruction is clearly erroneous. (Marshall v. Nugent, 222 F. 2d 604.) The purpose of the statute is to afford the district court an opportunity upon second thought, and before it is too late, to correct an inadvertant or erroneous failure to instruct the jury on the law applicable to the issues. The statute also serves to lessen the burden of an appellate court by diminishing the-number of rulings at the trial which it may be called upon to review. (3 Vernon’s op. cit., Supra, §60-251.2, p. 250; Gard, op. cit., Supra, §251, pp. 237-239.) . . .” (p. 222.)
Appellant argued on the motion for new trial, and now argues on appeal, that the instructions were not clear to some of the jurors. He introduced affidavits, one signed by a juror and others by investigators for appellant. These affidavits contained statements indicating that the instructions were not clear and were confusing to some of the jurors.
As to the affidavit of the juror, it was not admissible for it is an attempt to impeach and overthrow the verdict. Impeachment of the verdict was explained in Perry v. Bailey, 12 Kan. 539, where it is held:
“The general rule is, that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. But this general rule is subject to this qualification, that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury room, which does not essentially inhere in the verdict itself, as, that a juror was improperly approached by a party, his agent, or attorney, or that the verdict was determined by lot; but not to show any matter which does essentially inhere in the verdict, as that the juror did not assent to the verdict, that he misunderstood the instructions, or the testimony, or any other matter resting alone in the jurors breast.” (Syl. ¶ 3.)
See also Milling Co. v. Edwards, 108 Kan. 616, 620, 197 Pac. 1113; Kincaid v. Wade, 196 Kan. 174, 410 P. 2d 333; State v. Schroeder, 201 Kan. 811, 822, 443 P. 2d 284; and Hogue v. Kansas Power & Light Co., 212 Kan. 339, Syl. ¶ 3, 510 P. 2d 1308.
This rule is now recognized in the Code of Civil Procedure where it is said:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.” (K. S. A. 60-441.)
The “hearsay” affidavits of the investigators for appellant were likewise inadmissible for impeachment purposes. In addition we wish to note, the practice of sending investigators to harass or embarrass the jurors after discharge, if such was the case, cannot be condoned. The Code of Professional Responsibility in part provides:
“DR 7-108 Communication with or Investigation of Jurors.
“(D) After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.
“(E) A lawyer shall not conduct or cause, by financial support or otherwise, another to conduct a vexatious or harrassing investigation of either a venireman or a juror.
“(F) All restrictions imposed by DR 7-108 upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror.” (Rules of the Supreme Court of Kansas, Rule No. 501, DR 7-108, 209 Kan. lxxxvii.)
For appellant’s seventh point of error he complains that he was unduly restricted in making his final argument concerning the testimony of one of defendant’s witnesses (McNealy). The testimony of this witness concerned a speed tape which purported to show the speed of the train at 32 mph. The witness testified that the speed tape was a 120 mph speed tape being used in a 95 mph recorder, and that a transparent, overlay conversion-chart had to be used to determine the correct speed the train was traveling. This testimony was stricken by the trial judge when the railroad company was unable to produce records during the trial on this particular train. The jury was instructed to disregard the testimony of the witness. The testimony of this witness was not, therefore, before the jury and counsel’s comments on the evidence were improper. The closing argument and ruling was as follows:
“[Mr. Turner:] Here is the speed tape. They have got plenty of people that can read that tape. They can interpret that tape and tell you precisely what speed they were traveling at the time of the accident on that particular day. You remember Mr. McNealy who came in here and testified and the evidence showed that he testified falsely.
“Mk. McAtee: If the Court please, the Court has instructed the jury concerning Mr. McNealy’s testimony but I am certain the Court has not instructed the jury that he testified falsely.
“The Court: Counsel shall remain fairly within the evidence. Please proceed.
“Mr. Turner: Mr. McNealy testified and said that he would have evidence to show that what he testified to was true. He said it was immediately available and we waited three days and no such evidence. You can rest assured that if the evidence was as he said it was, that the proof would have been here or on the contrary if the evidence didn’t show it, then the evidence wouldn’t be produced. So it is up to you to determine whether or not he testified falsely or truthfully. There is one fact you should remember that he said that this speed tape, the original, has been in their control all of this time. You can rest assured that if it supported what he said the speed was that you would have been afforded the benefit of the speed at this precise point, if die speed tape supported their testimony.”
It is apparent that appellant’s argument was improper since it related to matters stricken from the evidence but, even beyond that, appellant did not limit his comments. He continued the argument. He is not now in a position to claim error in regard to any limitation.
In Taylor v. F. W. Woolworth Co., 151 Kan. 233, 98 P. 2d 114, it is said:
“. . . This court has consistently followed the general rule against imposing narrow and unreasonable limitations upon argument of counsel made to the jury. Counsel are entitled to comment freely upon the evidence, upon the credibility of witnesses where such comment is based upon facts appearing in the evidence, and to state their own views concerning the evidence. But countenance is not to be given to arguments based in no way upon the evi dence or to appeals outside the record manifestly intended to create passion and prejudice on the part of the jury. . . .” (p. 241.)
The eighth point of error urged by appellant is that the trial court erred in limiting his final argument that payment of any judgment would be the responsibility of the railroad and not of the individual defendants. He attempts to justify such argument on the ground that counsel may properly argue and comment on self-evident facts and matters of common knowledge, a questionable justification.
The argument to the jury, the objection and the court’s ruling on this matter are as follows:
“Now remember this and understand this: Mr. Hagen and Mr. Normington are employees and are under the control of the Union Pacific Railroad and personally have very little at stake here. But not with regard to money. The railroad is responsible for the payment of whatever your verdict is in this particular case.
“Mr. McAtee: Object, your Honor. Counsel knows that is not true.
"The Court: Overruled. Please proceed.
“Mr. Turner: The railroad is responsible for the acts of its agents, servants and employees totally and completely. I will illustrate that to you in this regard. That a corporation is not a person.”
As can be seen from the above statements appellant was not limited in this argument. The objection was overruled. The point is patently without merit.
The ninth point of error concerns the refusal of the trial court to permit the deposition of the defendant William H. Hagen to be read in evidence to show admissions made against interest. The trial court’s ruling in this regard was error. In the recent case of Mesecher v. Cropp, 213 Kan. 695, 518 P. 2d 504, this question is thoroughly discussed and we iterate what is said in that case:
“The applicable statute was K. S. A. 60-226 (d) (now K. S. A. 1973 Supp. 60-232 [a]):
‘“(d) Use of depositions. At the trial . . . any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:
“‘(2) The deposition of a party . . . may be used by an adverse party for any purpose. . . .
“‘(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.’
“In Aspelin v. Mounkes, 206 Kan. 132, 476 P. 2d 620, we held:
“ ‘A deposition of a party containing an admission against interest is admissible regardless of whether the party is present at the trial or absent from the jurisdiction.’ (Syl. ¶ 3.)
“In the course of that opinion it was said:
“ . . In Taylor v. Maxwell, 197 Kan. 509, 419 P. 2d 822, we pointed out that K. S. A. 60-226 (d) (2) specifically authorizes the use by an adverse party, for any purpose, of a deposition of a party, without regard to the limitations applicable generally to the deposition of witnesses offered by either party.’ (P. 138.)”
However, the error cannot be prejudicial when considered in light of the present record. The trial court permitted full use of the deposition on the cross-examination of Mr. Hagen. Appellant’s counsel conducted an extensive cross-examination. Throughout the course of the examination counsel referred extensively to the answers given in the deposition. It is apparent that the “admissions against interest” were fully explored and the jury was fully advised of any discrepancies in the deposition testimony. The error in excluding the deposition was rendered harmless by these later events.
In conclusion appellant contends the defendants were guilty of negligence as a matter of law and the court erred in refusing to grant appellant’s motion for a directed verdict at the close of his evidence and at the close of all the evidence.
The rule in Becker v. Rolle, 211 Kan. 769, 508 P. 2d 509, provides:
“On appeal in a civil action an appellant, who seeks review of an alleged erroneous ruling of the trial court, is obligated to designate a record sufficient to present the matter.” (Syl. 4.)
The record submitted to this court fails to show that a motion for a directed verdict was made. Appellant is precluded from presenting the question. However, if the point were properly presented to this court, what is said in Libel v. Corcoran, 203 Kan. 181, 452 P. 2d 832, would be applicable. There it is said:
“This is essentially a fact case. Appellant’s principal contentions upon appeal in effect ask us to reweigh those facts in the light of any conflict or inconsistency shown in the evidence. Tins, of course, is beyond the scope of our review, which is simply to ascertain whether the trial court’s findings are supported by substantial competent evidence. In malting this determination we are required to consider the evidence in its most favorable aspect to the party who prevailed in the court below (Frame, Administrator v. Bauman, 202 Kan. 461, 468, 449 P. 2d 525).” (p. 183.)
Having considered all points properly presented on appeal the judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
This is a condemnation case involving the amount of compensation, if any, reasonably needed by the school district to provide equivalent substitutes for the land condemned. It is the sequel to City of Wichita v. Unified School District No. 259, 201 Kan. 110, 439 P. 2d 162, in which we held the trial court erred in directing a verdict allowing the district $14,530 for replacement loss of the Skinner School site of 4.13 acres taken in the condemnation proceeding. In accordance with our decision, a new trial was held, resulting in a jury verdict and judgment for the school district in the amount of $110,500 from which the city has perfected this appeal.
Reference to our earlier opinion will disclose the factual background giving rise to this controversy.
Briefly, the Skinner school was closed in the spring of 1964, but by stipulation of the parties the school property was considered as being used for public school purposes on the date of taking, February 15, 1966. When use of the Skinner facility was discontinued, no additional land was purchased but the pupils were divided among three nearby schools. The record in this appeal indicates that approximately 80 to 90 students were sent to Isely, from 160 to 170 went to Mueller, and between 70 and 80 were absorbed at L’Ouverture. Special education students who had been attending Mueller and L’Ouverture were transferred to the Bridgeport School to make room for the Skinner children.
As was pointed out in our prior opinion, at the time of the first trial plans were underway for acquiring additional land at Isely to care for the former Skinner children at a stipulated cost of $14,530. The trial court, we held, erroneously took the view the tract added to Isely was the only land required to restore the district’s facilities to the status of utility enjoyed prior to the condemnation, and that as a matter of law both Mueller and L’Ouverture Schools were capable, without additional land expense, of caring for their share of the children from Skinner without diminishing or impairing the district’s over-all capacity to provide educational facilities for its youngsters.
The essence of our holding is found in the following language of Justice Fontron, speaking for the court:
“. . . [W]e believe the amount of compensation, if any, reasonably needed by the district to provide equivalent substitutes for the land condemned, presented a question for the jury to determine . . . Substitute facilities need not duplicate those which are taken, if they be of equivalent utility, and where no replacement is required to restore a public agency to its prior state of efficiency in discharging its public functions, nominal damages only are justified . . . However, what, if anything, may be the reasonable cost of furnishing necessary replacements constitutes a factual question.
“. . . The correct measure of compensation is the cost [of] providing necessary replacements or equivalent substitutes.” (pp. 119-120.)
Within the context of the foregoing language the city now contends the district court erred at the new trial in permitting the school district to introduce speculative evidence under the guise of expert testimony with regard to need for replacement of the land taken and the cost thereof. The city argues that speculative land values were considered on the “vague theory that sometime the district would or might determine the need of purchasing another 4.13 acres of land somewhere,” when, in fact, the school officials testified such land had not been acquired and that plans had neither been made nor recommended for specific land acquisition. As a result, the city urges the district was permitted to produce evidence of land value without first demonstrating the need therefor.
The city’s argument boils down to the question of whether there was evidence from which the jury was justified in finding the district reasonably needed $110,500 to provide equivalent substitutes for the land condemned. Under our well-settled rule, if there is competent evidence of a substantial nature to support the jury’s verdict, it will not be overturned on appeal. (Thomas v. Kansas City Southern Rly. Co., 197 Kan. 747, 421 P. 2d 51. See, In re Estate of Countryman, 203 Kan. 731, 457 P. 2d 53; 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error § 507.)
When a jury verdict is challenged as not being supported by the evidence, the duty of this court extends only to a search of the record for the purpose of determining whether or not there was substantial, competent evidence to support the verdict. In making this determination, we neither weigh the evidence nor pass upon the credibility of the witnesses, but must view the evidence in the light most favorable to sustaining the verdict. (White v. Hutton, 205 Kan. 715, 472 P. 2d 223; Smith v. Mr. D’s, Inc., 197 Kan. 83, 415 P. 2d 251; Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670.)
The only evidence at retrial was that presented by the school district. Viewed most favorably in support of the district’s position, we find evidence tending to show that the transfer of Skinner pupils to Isely, Mueller and L’Ouverture was merely a temporary solution for the time being. Each of these schools to which students were transferred was already being put to maximum use before the increment brought about by the addition of the Skinner children. None of the schools had sufficient land for additional buildings, although more land was needed at both the Isely and Mueller sites even before the closing of Skinner. The immediate acquisition of additional land would have taken a sizable expenditure of money, which the school officials deemed economically unfeasible; further, adequate funds were not available.
In 1963 the Isely site was already overcrowded and “completely inadequate,” there being twelve portable classrooms and two portable toilets located on it in addition to the permanent building. With the addition of a part of the Skinner children in 1964, the Isely accommodations were increased to a total of twenty-one portable classrooms, three portable facilities, and three portable toilets. Playground space was extremely limited. The acquisition in the spring of 1966 of eight acres of adjacent land from the park board at a cost of $14,530 made the Isely site adequate for meeting only the existing need. Actually, the additional land had been needed for years to handle the pupils in the Isely area. Although enlargement of the Isely facilities was recommended by the Citizens Planning Council on School Facilities in its report of May 1966, this was no longer in the picture at the time of the new trial because of the difficulty encountered by the district with the Department of Health, Education and Welfare.
The situation at the Mueller site (4/s acres) was equally disturbing. As early as 1961 plans were underway to enlarge the permanent building and avoid further use of fourteen portable classrooms and two portable toilets. Upon learning that the highway would take the Skinner School, the district decided from the standpoint of economy the wise thing to do would be to provide additional room by adding eight classrooms to the permanent structure, and thus accommodate temporarily a portion of the Skinner students. In order to obtain more space for the building, as well as to gain additional area for the meager playground facilities, the district obtained permission from the city to locate the permanent structure closer to the street and to erect a retaining wall and fence. This was accomplished at an expenditure of $8,750. The Mueller site, however, was inadequate almost from the time it was built. According to the district’s “school plant expert,” a study of the problem made it appear the only logical thing to do was to acquire some improved property adjacent to the site; but this could not be done at the time because of lack of funds available to the district.
The impact of the Skinner students on L’Ouverture was of less magnitude in that only one portable classroom was required to be added to that facility in 1964.
There was testimony about there being a definite need to replace the Skinner site with additional land in the area having similar utility for school purposes; but the district had no other land available in the vicinity. The existing school sites were already taxed to capacity in caring for the students in their respective districts. Two witnesses gave opinions that the school district would be required to pay $120,000 to $125,000 for land reasonably needed to provide equivalent substitutes for the Skinner site condemned.
In view of the evidence that the immediate measures taken by the school district were of a temporary nature and merely compounded the crowded conditions of the nearby schools, it cannot be said that these substitute facilities were of equivalent utility, or that the district was restored to its prior state of efficiency in discharging its function of providing educational facilities for the children in the Sldnner School area. The fact the district had not taken steps to acquire specific additional lands was explained by evidence indicating that in the school officials’ judgment it would be economically unwise to do so at the present. Notwithstanding, the evidence demonstrated the need therefor, and the jury was justified in finding that the acquisition by the district of additional land was reasonably necessary to restore the district’s facilities to the status of utility enjoyed prior to the condemnation.
The evidence presented a factual issue upon which reasonable minds could reach different conclusions, and the city’s motion for directed verdict limiting the district’s recovery to $14,530 for Isely land costs, and $8,750 for land preparation costs at the Mueller School, was properly overruled. (Pickens v. Maxwell, 203 Kan. 559, 456 P. 2d 4; Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 454 P. 2d 124; Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67.)
In his instructions to the jury the trial judge fully set forth the applicable principles of law as outlined in our first decision, City of Wichita v. Unified School District No. 259, supra. The record contains substantial, competent evidence to support the jury’s verdict, and the judgment is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment denying relief in a proceeding under K. S. A. 60-1507.
The pertinent facts will be stated as we consider the various issues to which they apply.
The appellant was convicted of forgery in 1965, and was sentenced to at least 40 years under the provisions of the habitual criminal act (K. S. A. 21-107a).
On December 1, 1967, appellant filed a motion to vacate the judgment pursuant to K. S. A. 60-1507. Upon being denied relief as requested he appealed to this court.
The appellant first contends that the trial court erred in assuming jurisdiction of the prosecution after he was extradited from the state of Washington.
On March 25, 1965, the state of Kansas filed a complaint charging appellant with having committed burglary and larceny on March 22, 1965. The appellant was found in the state of Washington and extradition proceedings were commenced which resulted in his return to the state of Kansas to face trial. Upon his return, the complaint was amended before the preliminary hearing by adding an additional charge of uttering a forged instrument and changing the date of the offenses from March 22, 1965, to March 19, 1965.
The jury found the appellant not guilty on the burglary charge but did find him guilty of uttering a forged instrument.
The appellant states his contention on this issue as follows:
“While it may be permissable for the State to charge a defendant with a crime other than the one for which he was extradited, appellant contends that the State cannot later change the date of the crime for which he was extradited without destroying the validity of the extradition and the jurisdiction of the court before which he is brought.”
The appellant makes no further argument and cites no authorities.
It might be suggested that at no place in proceedings did appellant make any objection to the amended complaint. Irregularities in a complaint may be waived by failure to object. (State v. Jones, 125 Kan. 147, 264 Pac. 40.) In State v. Stoffel, 48 Kan. 364, 29 Pac. 685, we held:
“The preliminary complaint made before a magistrate to obtain a warrant has served its purpose when the arrest of the defendant has been accomplished. An objection to the sufficiency of the allegations of the complaint, made after a preliminary examination has been had upon the charge stated in the warrant, is unavailing.” (Syl. f 1.)
Moreover, the original complaint stated on or about March 22, 1965. Before the preliminary hearing the complaint was amended to state on or about March 19, 1965. Both dates were on or about the same time. There is no contention that the appellant was hampered in the preparation and presentation of his defense. The exact time of an offense need not be stated. It is sufficient if shown to be within the statute of limitations. (State v. Thomas, 177 Kan. 230, 277 P. 2d 577.)
It might also be noted that the jurisdiction of the district court to try a person for a criminal offense does not depend upon how he came to be in the state. In In re Flack, 88 Kan. 616, 120 Pac. 541, we held:
“A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, and who, on the demand of the executive authority of the state from which he fled, shall be delivered up and removed to the state having jurisdiction of the crime, may there be prosecuted for crimes other than the one specified in the demand for his delivery without first giving him a reasonable opportunity to return to the state which surrendered him.” (Syl.) (See, also, State v. Wellman, 102 Kan. 503, 170 Pac. 1052; Stebens v. Hand, 182 Kan. 304, 320 P. 2d 790.)
The appellant contends that the trial court denied him due process in deferring sentencing to permit the state time to secure evidence for the purpose of invoking the habitual criminal act.
We are presented the following facts:
The appellant was brought before the trial court following his conviction by a jury. The appellant stated that he did not wish to file a motion for a new trial and desired to be sentenced immediately. Counsel for the appellee then stated that he desired to get evidence of previous convictions and asked the court to defer sentencing for at least a week. The trial court then gave the appellant twelve days, September 27, 1966, in which to file a motion for a new trial. A motion for a new trial was filed, argued on September 27, 1966, and denied.
The appellee then requested an additional day to obtain evidence of previous convictions. This was granted. The appellee produced its evidence of prior convictions on September 28, 1966. Sentencing took place on September 29, 1966.
We do not see how the rights of appellant were in any way prejudiced and he discloses none.
Appellant calls our attention to K. S. A. 62-1722 which provides:
“In any criminal action in which defendant pleads guilty, or is found guilty by a jury, or by the court if the trial is to the court, if defendant is not then in custody of the sheriff, he shall be taken into custody at once; and unless he announces that he desires to file a motion for a new trial, he shall be sentenced either on that date or at a fixed time within ten days.”
This provision applies only when a motion for a new trial is not filed. Although appellant suggested the waiver of a motion for a new trial, he was granted twelve days in which to file such a motion and did so file. The statute therefore has no application.
The one delay in sentencing after the motion for a new trial was overruled presents no ground for complaint. K. S. A. 62-1723 provides in part:
“. . . If the motion for a new trial is overruled, sentence shall be imposed within five days. . . .”
It may also be noted that we have held such provision to be direc tory and not mandatory. (State v. Nelson, 200 Kan. 411, 436 P. 2d 885, cert. den. 392 U. S. 915, 20 L. Ed. 2d 1375, 88 S. Ct. 2078.)
The appellant contends that he was denied due process of law because of the prosecuting attorney’s abuse of discretion in invoking the habitual criminal act.
The record discloses nothing and appellant points out nothing to indicate abuse of discretion other than the fact that evidence was produced to establish a previous criminal conviction as provided by the habitual criminal act. In Addington v. State, 198 Kan. 228, 424 P. 2d 871, it was held:
“In this jurisdiction, it is the duty of the county attorney to conduct criminal prosecutions on behalf of the state, and all steps in the trial are likewise under his supervision and control, including the exercise of discretion to invoke the Habitual Criminal Act in a proper case, upon reasonable notice of the state’s intention to do so.
“The good faith of the county attorney is a material issue bearing upon his motives when invoking the Habitual Criminal Act, since the exercise of discretion in the performance of his duties implies conscientious judgment rather than arbitrary action, and takes account of the law and particular circumstances of each case. Such discretion must be exercised fairly, wisely, and in accordance with the established principles of law; and includes the right to select a course of action, not willfully or in bad faith, but only with respect to what is right under the circumstances.” (Syl. ¶¶ 3 and 4. See, also, State v. Shaw, 201 Kan. 248, 440 P. 2d 570.)
We find no trial errors which would justify the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of second degree robbery.
On the evening of January 23, 1968, two young men, Gregoiy Mitchel and Steve Shirack, went to northeast Wichita in search of some “fun.” Shortly after arriving in the area they met Hughie Sanders. The rest of the evening was spent riding around in Hughie Sanders’ car looking for a “fun house.” During the course of the evening a portion of several different bottles of whiskey were consumed by the riders of the automobile. In then search, their travels took them to several different locations. At each location one or all of the riders would exit the auto and later return.
At their next to last stop, Max Potts, the defendant, joined the three and they went to a house near the intersection of 26th Street and Mosley. When the four occupants arrived at this house they got out of the car. Steve Shirack and Gregory Mitchell led the way. After leaving the automobile Gregory Mitchell was knocked to the ground by Max Potts, and his billfold, keys and other property were taken. The other boy was held at knife point by Hughie Sanders. After the robbery Potts and Sanders drove off in the car. The victims made their way to a filling station where the police were called. Potts and Sanders were later identified through a line-up and later in court by each victim.
Potts was tried and convicted of second degree robbery. He has appealed.
Hughie Sanders, who had remained in jail since his arrest and failure to make bond, was put on the witness stand as a witness for the state. The state being dissatisfied with Sanders’ testimony proceeded to read at length the questions and answers from a statement made by Sanders and recorded by a court reporter after Sanders’ arrest. The statements read were incriminating and directly identified Potts as the robber.
The appellant contends:
“The extended reading of Hughie Sanders’ extrajudicial statement to the jury violated the defendant’s right of confrontation guaranteed under the sixth and fourteenth amendments to the Constitution of the United States and under Section Ten of the Bill of Rights of the Kansas Constitution.”
A determination of the contention requires a consideration of the statement and the circumstances under which the questions and answers therein were read.
When Hughie Sanders was made a witness by the state, it was no doubt believed that his testimony would be in line with his previous statement. However, when questioned about the preliminaries leading up to robbery on the evening of January 23, 1968, his answers were very evasive. He answered that he did not know or that he could not remember.
Counsel for the state requested permission to ask leading questions. The court declared the witness to be hostile and evasive and granted permission. We extract the following:
“Q. Hughie, what else do you remember about that night?
“A. I don’t know which night you’re talking about.
“Q. The night these two blond headed boys were with you and Max Potts in your brother-in-law’s Pontiac. Do you remember meeting them down in the vicinity of the 1100 block on Murdock?
“A. Meeting who down there on Murdock? Blond headed boys (remainder inaudible). No, sir, I don’t remember.
“Q. How come you don’t remember, Hughie?
“A. How come I don’t remember?
“Q. Um-hum.
“A. Became it never happened.” (Emphasis supplied.)
Again he was_ questioned:
“Q. (By Mr. Foster) Your lawyer asked you the next question, ‘And you later got some more booze?’ And your answer was, ‘Yeah.’ Your lawyer asked you, ‘And then what happened?’ And you said, ‘Well, we took them out in the country.’ And your lawyer asked you, ‘When did you see Max Potts? How early did he get together with you and the other two people that you have named?’ And your answer was, ‘You had been with them for some little time yourself before Max Potts — ’ Your answer was, ‘Yes.’ He then finished and said, ‘Got together with you all?’ And you answered, ‘Yes.’ Turning now to page 4, ‘Yes,’ and you said, ‘Yes.’ ”
His answer was, “I don’t remember.”
Hughie Sanders was then questioned:
“Q. All right. Do you remember going into the north part of town on the other side of 21st Street?
“A. Yeah.
“Q. Okay. What happened then?
“A. Well, I usually drive there and pick up my sister from work. She used to work out there on 37th Street, somewhere in there. I used to go out there all the time.
“Q. Do you remember being there this night last January with Max Potts and these two blond headed boys?
“A. I never did go with him.
“Q. You never did go there?
“A. (No further response.)
“Q. Referring to Page 4 of the transcript, your lawyer asked you the question, ‘Where did you first see Max Potts?’ And you answered, ‘On the corner of Murdock and Ohio.’ Your lawyer asked, ‘Did he get into your car?’ And you said, ‘Yeah.’ Your lawyer asked you, ‘Then where did you go?’ You said, ‘Went out to the north part of town.’ Your lawyer asked you, ‘How far north, approximately?’ You said, ‘Oh, about — just on the other side of 21st Street.’
“Mr. Lester: I object again, Your Honor. He’s not even putting this matter in question form. He’s trying to get him—
“The Court: (Interrupting) I think you should ask this witness if he
made those statements rather than just read the transcript.
“Mr. Foster: That’s what I did, Judge. I covered that segment and that is the segment I was going to cover and ask him like I did a few minutes ago, take this segment at a time and see how his memory is.
“Q. Do you remember being out on — I think it was Mosley, or it is a sandy street up there across 21st Street with Max Potts and these two boys when you stopped your car and all four of you got out?
“A. No. I told you, Max Potts, he don’t go with me. 1 don’t even like the man.
“Q. How long—
“A. I don’t know what he he doing with me.
“Mr. Foster: I refer the Court’s attention to Page 4 again of the transcript.
“Q. (By Mr. Foster) After you told us you went up to just the other side of 21st Street, your lawyer asked you, ‘Then what happened?’ You said, ‘We got out to go into some house and there one Max L. Potts did hit one of the guys that was with us and presumably took some money off of him.’ ” (Emphasis supplied.)
We conclude with the following:
“Mr. Foster: Directing the Court’s attention to Page 5 of the transcript—
“Q. (By Mr. Foster) Your lawyer asked you, ‘What were you going into the house for?’ And your answer was, ‘Oh, supposed to have been a house of prostitution.’ Your lawyer said, ‘Had someone told these people Shirack and Mitchell that it was a house of prostitution?’ And you said, ‘We all was advised it was a house of prostitution.’ Your lawyer said, ‘Advised by whom?’ And you said, ‘Well, I don’t know. I got that information from Potts and he got it from someone else.’ Do you remember those questions being asked you?
“A. (Witness shakes head in the negative.)
“Q. Okay. He then asked you, ‘You say Potts hit one of the two people?’ And you said, ‘Yes, sir. The boy was — I saw the boy fall and I presumed that he got the money oif of him. Actually, I didn’t receive any part of it. However, I was told that he was — that he didn’t have any money on him.’
“Do you remember that question and answer?
“A. Who- had some money on him?
“Q. One of these two blond headed boys by the name of Mitchell and Shirack. You told us Potts knocked him down, but Potts told you he didn’t have any money on him.
“A. I don’t remember that.
“Q. Okay. Then I asked you, ‘Hughie, how long have you know Max Potts?’ And you said, ‘Approximately eleven — approximately eleven years.’ Then I asked you, ‘There is no question in your mind that he was the man you picked up at Murdock and Ohio?’ And you said, ‘No, sir.’
“Do you remember me asking you those questions?
“A. (Witness shakes head in the negative.)”
The above extracts from Hughie Sanders’ testimony will suffice to demonstrate the nature of the issue we have before us.
The appellant relies on Pointer v. Texas, 380 U. S. 400, 13 L. ed. 2d 923, 85 S. Ct. 1065 and State v. Hooks, 202 Kan. 68, 446 P. 2d 770 to support his contention that the reading of the questions and answers from Sanders’ former statement denied the accused the constitutional right to confront the witnesses testifying against him.
Both of the above cases dealt with statements, depositions or testimony sought to be used as direct evidence against the defendant. The appellee concedes that this cannot be done but it does contend that the presence of the defendant when the contradictory statements were made is not necessary to make the statements admissible since the purpose of showing them is not to bind the defendant but to impeach the witness. With this we must agree.
It is the rule in this state that where it appears a party is genuinely surprised by. adverse testimony from his own witness, the trial court may, in its discretion, allow the party calling the witness to cross-examine and to interrogate him as to prior contradictory statements. A party may impeach his own witness to such an extent. K. S. A. 60-422 grants impeachment privileges to a party calling the witness. In case of surprise the state has long been granted the privilege of impeaching its own witness. (State v. Smarsh, 117 Kan. 238, 231 Pac. 52.)
As a rule the mere fact that a witness has faded to testify as ex pected does not warrant impeachment by proof of prior statements in conformity with what he was expected to testify but the testimony given must be affirmative, contradictory and adverse to the party calling him. (Hancock v. Bevins, 135 Kan. 195, 9 P. 2d 634; Williams v. Hendrickson, 189 Kan. 673, 371 P. 2d 188.)
The appellant contends that the witness gave no adverse testimony but only stated he did not know or could not remember. We cannot agree.
Before the appellee asked permission to cross-examine the witness testified that he did not remember meeting the two blond boys “because it never happened.” Later, when asked if he remembered meeting with Max Potts and the two blond boys on the evening in January, he stated, “I never did go with him.” Again, he testified— “I told you, Max Potts, he don’t go with me. I don’t even like the man.”
Such testimony was affirmative, adverse and very damaging to the appellee’s case. Potts had to be placed at the scene of the robbery to be convicted. It is under just such circumstances that impeachment is justified.
In State v. Jones, 202 Kan. 31, 48, 446 P. 2d 851, we said:
“. . . It is well settled that prior inconsistent statements made by a witness out of court may be shown to impair his credibility. (State v. Donahue, 197 Kan. 317, 416 P. 2d 287.) The rule is stated in State v. Sorter, 52 Kan. 531, 34 Pac. 1036, where it was held:
“ ‘While ordinarily a party may not impeach his own witnesses, nor offer evidence for that purpose, he is not conclusively bound by the statements which the witness may make; and where a party has been entrapped or deceived by an artful or hostile witness, he may examine such witness as to whether he had not previously made contrary statements; and may, in the discretion of the court, be permitted to show what such contrary statements were.’ (Syl. ¶ 5.)
“Cases which have followed Sorter are State v. Hamilton, 74 Kan. 461, 87 Pac. 363; State v. Terry, 98 Kan. 796, 161 Pac. 905; State v. Cole, 136 Kan. 381, 15 P. 2d 452; State v. Olthoff, 141 Kan. 70, 40 P. 2d 384, and State v. Barnes, 164 Kan. 424, 190 P. 2d 193. The state had a right to reply on Mrs. Hopson’s prior statements under oath, and her deviation therefrom during the course of the trial left the state with no alternative but to impeach her by the use of her prior inconsistent statement. (K. S. A. 60-422 [a].)”
The appellant objects to the trial court’s instructions and the prosecutor’s statements thereon in his closing arguments.
In Instruction No. 11, the trial court gave the usual instruction on the credit to be given the testimony of an accomplice. Instruction No. 12 is as follows:
“You are instructed that out-of-court statements admitted into evidence to impeach the testimony of Hughie Sanders are to be considered solely for the purpose of impeaching his credibility and are not to be considered by you as evidence for any other purpose.”
Counsel for appellee commented on these instructions in his closing argument.
The appellant now contends that the instructions and the comments of appellee’s attorney thereon tended to stress the error of the trial court in permitting counsel for appellee to cross-examine Sanders and impeach his credibility by reading to him questions and answers from a previous statement.
What has been previously said disposes of this issue — there was no error in the cross-examination and impeachment of the witness.
We might also state that objections were not made to the instructions or the closing argument of counsel.
Technical objections to the trial court’s instructions raised for the first time on appeal will not be considered on appeal. (State v. Greer, 202 Kan. 212, 447 P. 2d 837.) Argument of counsel not objected to at time is not reviewable on appeal. (Watkins Co. v. Hanson, 185 Kan. 758, 347 P. 2d 447; State v. Jones, 137 Kan. 273, 20 P. 2d 514.)
Appellant further contends that since the statement of Sanders was not introduced in evidence it was error for counsel for appellee to comment on the impeaching statement. The case of State v. Gauger, 200 Kan. 515, 438 P. 2d 455 is cited as authority for the contention. In the Gauger case we did say that it was improper for the court to permit counsel in his closing argument to refer to the contents of a written matter not in evidence for the purpose of impeachment. However, where, the questions and answers are read to the witness from the statement and included in the record, and there is no claim that they were not read accurately, there is no necessity for introducing the statement itself. The questions and answers referred to by counsel from the statement were before the jury. The reporter who recorded the statement took the witness stand and identified it as that of Hughie Sanders.
In State v. Lopez, 182 Kan. 46, 318 P. 2d 662, we stated at page 50 of the opinion:
“. . . In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in the discussion of it in which he may use illustrations and appeal to the jury with all the power and persuasiveness which his learning, skill and experience enable him to use. (State v. Wilson, 108 Kan. 433,195 Pac. 618.) . . .”
It might again be noted that there was no objection made to this part of counsel’s closing argument.
The appellant addressed his last objection to the mental competency of Hughie Sanders to testify. The question was addressed to the sound discretion of the trial court and he found the witness competent. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846.) We find no reason to disturb the finding.
A careful examination of the record discloses no trial errors that would justify the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for the wrongful death of the plaintiff’s mother, Mrs. Harriet Phillips. (K. S. A. 60-1901.) As the appeal is presented, the sole question for our determination is whether the plaintiff’s evidence was sufficient to warrant submission of the case to the jury on the theory the defendant was guilty of such reckless conduct as to evince disregard or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended, which may be justly characterized as willful or wanton conduct.
The district court having sustained the defendant’s motion for a directed verdict at the close of the plaintiff’s testimony, it is elementary that every material fact which the plaintiff’s evidence tended to prove must be taken as true, giving it the most favorable inferences, and disregarding that unfavorable. (Weber v. Wilson, 187 Kan. 214, 216, 356 P. 2d 659.) If there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences, or an indifference of whether such want of care inflicts injury, then it is a question to be determined by the jury whether the negligent conduct of the defendant amounted to willfulness or wantonness. In Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, 447 P. 2d 833, it was said:
“. . . the rule is that on a motion for directed verdict the trial court does not weigh evidence but must accept as true all the facts which the evidence tends to prove and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury . . .” (1. c. 237.)
The essential facts shown by the evidence are that in 1957 the defendant inherited from her husband a rooming house located at 535 Cleveland, in Wichita. The rooming house contained several rooms in which unvented gas radiant heaters were installed. The defendant continued to operate the property until 1962. After 1962, she rented the property first to a Mr. West, then to a Mr. Magill, and finally to a Mr. Ward.
When Magill lived in the house, he rented rooms to other persons with the knowledge of the defendant. The defendant lived around the corner from the property and had keys to the house and rooms and came in and went out as she pleased. When Magill moved into the house it was in a run-down and poor condition. He discussed with the defendant what repairs needed to be made to make the old house livable. She made a few repairs, but would not spend any money to fix up the house or vent the gas heaters. Finally, Magill got disgusted and moved out “because the house was just going downhill.” He testified it was beyond repair, and had he fixed it himself, it would have cost him more than he could have made out of it. Ward moved into the house in 1966, and rented a room from Magill. When Magill moved out, he rented the property from defendant. She knew Ward intended to rent some of the rooms to other persons. She also knew there were gas heaters in the rooms and that they were unvented. On one occasion, when the defendant was in the house she and Ward had a conversation about the heaters. He told her they were “bad” and needed to be vented. He testified, “Mrs. Robinson told me — concerning the heaters and everything else, that she wasn’t going to fix the house up in no kind of way.” He further testified that she “wasn’t concerned enough about the house to have the open-faced unvented gas heaters removed.”
The defendant testified for the plaintiff that she knew there were unvented gas heaters in the rooms of the house and that they were installed just like they were when the house was left to her by her deceased husband. After the incident of January 1, 1968, hereafter related, she had all the heaters removed upon the order of the Chief of the Wichita Fire Department.
Ward collected the rent from the other tenants and paid his rent and theirs to the defendant at her house. He had sublet one of the rooms to a Timothy Moore. The room contained an open-faced radiant type gas heater which was located on the south wall and installed in a recess in a fireplace. The heater had a capped three-inch vent flange on the back, but no vent or outlet pipe to take carbon monoxide “to the outer air.” As installed, the operation of the heater created a hazard to life or safety of persons on the property. Ward told Moore of the dangerous condition of the heater, but the plaintiff’s mother had not been advised of the condition.
Moore and the plaintiff’s mother arrived at the house at about 5:00 o’clock on the afternoon of December 31, 1967. They had a portable television with them. During the evening Ward saw Mrs. Phillips in his kitchen twice where she ate some roast beef. This was the last time he saw her alive. When Ward returned from his girl friend’s house at about 12:15 a. m. January 1, 1968, he heard what he thought was a radio or television playing in Moore’s room. He got up early the next morning and thought he heard snoring from the room.
When Mrs. Phillips did not return home by 11:00 a. m., January 1, 1968, the plaintiff went to the rooming house. Ward broke down the door to Moore’s room and found the plaintiff’s mother and Moore on the bed. The plaintiff’s mother was not breathing, and Moore would not wake up. He died the following afternoon. When Ward and the plaintiff entered the room the heater was burning, the two windows were closed, but there was no odor of gas. The parties stipulated the plaintiff’s mother died from carbon monoxide poisoning. There was evidence the room contained a lethal amount of carbon monoxide produced by the burning of the unvented gas heater.
In stating the issues for trial, the pretrial order identifies two separate theories upon which the plaintiff’s claim was based. The first was negligence, in the event the decedent, Mrs. Phillips, was an invitee on the premises of the defendant, and the second was willful or wanton conduct in the event the decedent was a licensee.
We consider the case only on the basis as the parties present the appeal, that is, on the theory that Mrs. Phillips was a licensee in relation to the defendant, and that the only duty the defendant, as the owner of the property, owed the decedent was to refrain from willfully or wantonly injuring her.
What degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence itself, and, in the nature of things, is so dependent upon the particular circumstances of each case as not to be susceptible of general statement. Conduct which will justify the presumption of willfulness or wantonness is such as to imply a disregard of consequences or a willingness to inflict injury.
It is fundamental that the law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural consequences of his acts or omissions, and treats him as guilty of willful and wanton wrong. Our cases hold that one with knowledge of existing conditions, and conscious from such knowledge that injury or death will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously does some act, or omits to discharge some duty, which produces the injurious result, is sufficient to establish willful or wanton conduct. (Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822; Elliott v. Peters, 163 Kan. 631, 185 P. 2d 139; Steinmeyer v. McPherson, 171 Kan. 275, 232 P. 2d 236; Perry v. Schmitt, 184 Kan. 758, 339 P. 2d 36; Blackburn v. Colvin, 191 Kan. 239, 380 P. 2d 432; Ralls v. Caliendo, 198 Kan. 84, 422 P. 2d 862; Duckers v. Lynch, 204 Kan. 649, 465 P. 2d 945.)
In Blackburn v. Colvin, supra, it was said that in order for the plaintiff to recover it is not necessary that his evidence establish a formal and direct intention to injure any particular person. It is sufficient if it indicated that degree of indifference to the rights of others which may justly be characterized as reckless. Reckless is an indifference whether wrong is done or not, and is a stronger term than ordinary negligence. To be reckless, conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.
In Frazier v. Cities Service Oil Co., supra, it was said that 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.
In Perry v. Schmitt, supra, this court stated that an act has been held sufficient to constitute wantonness if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result.
A reading of the record discloses the following admitted and uncontroverted facts: (1) The defendant had knowledge of existing conditions that the gas heaters in the various rooms of the house were unvented and she had been warned they were “bad” and should be vented; (2) the defendant’s conscious attitude from such knowledge was one of indifference as to whether her failure to act on the warning would likely or probably result in injury or death to others; (3) the decedent was on the defendant’s property as a social guest of Moore, and (4) the decedent’s death was a result of carbon monoxide poisoning which was caused by the use of the defective open-faced unvented gas heater supplied by the defendant.
Considered in the light most favorable to the plaintiff, we are of the opinion her evidence sustained the burden of establishing a prima facie case of willful or wanton conduct on the part of the defendant. The defendant knew of the existing condition of the unvented heaters, which is sufficient under the facts and circumstances to support the inference she knew or should have known they created a dangerous condition from which injury or death would likely or probably result from her failure to install proper vents. Moreover, knowing of the dangerous condition created on the property, her indifference to the consequences was established by the evidence. Magill moved out of the house because the defendant would do nothing but let the house deteriorate, and she was not concerned enough to replace the unvented heaters. In addition, she told Ward she would not fix the heaters or the house in any way.
Considering the foregoing in its totality, it is sufficient to indicate a reckless disregard for the rights of others with a total indifference and unconcern for the probable consequences under circumstances involving danger to life or safety of others, although no harm was intended.
The district court erred in sustaining the defendant’s motion for directed verdict. The cause is remanded to the district court with instructions to submit the cause to the jury under appropriate instructions, after opportunity is given the defendant to introduce her testimony.
It is so ordered.
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The opinion of the court was delivered by
Harman, C.:
This action by three plaintiffs is for overtime wages, liquidated damages and attorneys’ fees under the Fair Labor Standards Act of 1938, or, in the alternative, for compensation pursuant to their contracts of employment as custodians.
Separate claims filed by plaintiffs were consolidated and heard in trial to the court. At the conclusion of plaintiffs’ evidence the trial court sustained defendant’s motion for involuntary dismissal. This appeal ensued.
Appelants’ evidence revealed the following: Appellee, Unified School District No. 385, commonly known as the Andover district, embraces territory in Rutler and Sedgwick counties. It has two school buildings to be maintained by custodial work. The new building contains fifteen rooms consisting of a cafeteria, kitchen, shop, band room, music room, drafting room, three practice rooms, boiler room, three rest rooms and two other rooms. The old budding has twenty-two normal size classrooms, three home economic rooms, gymnasium with stage, halls and stairways. The classrooms contain the standard school equipment. The two buildings have about 154 windows.
All three appellants were employed as custodians by appellee during the time for which they seek overtime wages. Appellant Wiles was employed as the head custodian. His contract and that of appellant Razey were written. Appellant Schroeder’s contract was oral. Other custodians were employed on a part time basis.
The contracts of Wiles and Razey, dated June 5,1967, and July 10, 1967, respectively, stated the duties expected of each and his salary based upon a forty-hour work week up to a certain date at a specified hourly rate, and thereafter salary based upon a forty-two hour week at a specified hourly rate. Roth contracts contained the following provisions:
“2. . . .
“b. Authorized overtime shall be paid at IK times the hourly earnings.
“5. The custodian shall work under the direction of the superintendent of schools or the principal of the school and all communication between the custodian and the Board shall be through the school administrator.”
On November 1, 1967, the contract of appellant Wiles was renegotiated in view of the overtime he had been working so as to stabilize his total monthly wage at about $525.00. This second contract was the same as the first except his hourly wage for a forty-hour work week was reduced and the contract contained the following: “. . . may work up to 60 hours per week authorized.”
Appellant Schroeder worked from about January 2, 1968, to about February 4, 1968, by reason of an oral agreement with the school superintendent, Harold McCreight.
Appellants Wiles and Razey testified that when they were employed they were told by the superintendent the work was there to be done and it had to be done but not to turn in any overtime unless authorized by him; that the district had to comply with the federal wage and hour law which was in the process of being construed. Appellants found it impossible to do the work expected of them in the regular work week provided in their contracts and as a consequence worked overtime. Wiles began keeping a separate private record of the actual hours worked each day by Razey and himself. Schroeder kept his own record. Some of these overtime hours were presented to Superintendent McCreight — some were not. Each month appellee paid a certain amount of overtime wages as authorized by McCreight. Evidence was adduced as to the number of hours each appellant worked and the nature of the work done. Each contends he is entitled to overtime pay under the Fair Labor Standards Act for those hours for which he has not been paid.
In dismissing appellants’ action the trial court held the act “cannot apply to a purely local secondary school which is not engaged in interstate commerce.” Hence the first question to be determined is the application of the act under the evidence adduced.
A brief resume of the Fair Labor Standards Act (29 USCA § 201, et seq.) may be helpful. As originally enacted it required every employer to pay each employee engaged in interstate commerce or in the production of goods for interstate commerce a certain minimum hourly wage and to pay at a higher rate — time and a half — for work in excess of a specified maximum number of hours per week. The act defined the term employer so as to exclude any state or political subdivision of a state. As initially construed, it was the individual activities of the particular employee, and not those of the employer, which determined whether the employee was engaged in interstate commerce or in the production of goods for interstate commerce. In 1961 Congress enlarged the coverage to include each employee who in any work week is employed in an enterprise engaged in interstate commerce or in the production of goods for interstate commerce (29 USCA §206 [h]). In 1966 Congress again amended the act. To the fist of employer activities covered it added, among others, the operation of an elementary or secondary school regardless of whether such school is public or private or operated for profit or not for profit, and it modified the definition of employer so as to remove the exemption of the states and their political subdivisions with respect to employees of schools 29 (USCA 1970 Cum. Pocket Part, § 203 [s] [4]).
In Maryland v. Wirtz, 392 U. S. 183, 20 L. ed. 2d 1020, 88 S. Ct. 2017, the court considered these amendments. It determined the effect of the 1961 amendment containing the “enterprise concept” was to extend protection to the fellow employees of any employee who would have been protected by the original act, but not to enlarge the class of employers subject to the act.
As to the 1966 amendment the court stated:
“In order to be covered by the Act, an employer . . . school must in fact have
‘employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that ' have been moved in or produced for commerce by any person. . . .’ 29 U. S. C. § 203 (s) (1964 ed., Supp. II).” (p. 200.)
The burden of making the requisite showing is upon the employee claiming the benefits of the act. (Warren-Bradshaw Co. v. Hall, 317 U. S. 88, 87 L. ed. 83, 63 S. Ct. 125; Jackson v. Derby Oil Co., 157 Kan. 53, 139 P. 2d 146; Stewart v. Mabee Oil & Gas Co., 158 Kan. 388, 147 P. 2d 731).
Appellants concede the correctness of the foregoing principles. They also concede their evidence at trial did not show that any materials, supplies or equipment used by the school came from sources outside the state of Kansas. Their evidence went only so far as to describe the buildings in which their custodial duties were performed. They now request this court, pursuant to K. S. A. 60-412 (c), to take judicial notice, as a matter of common knowledge, that all of the building materials, electrical equipment and fixtures, school desks, laboratory equipment, supplies, erasers, chalk, etc., are not manufactured or produced within the state of Kansas and of necessity some of them have to be imported from outside the state. Appellants made no such request of the trial court nor have they furnished information relevant to the propriety of taking such judicial notice and to the tenor of the matter to be noticed, as contemplated by K. S. A. 60-412 (d). Appellee denies its employees had the requisite engagement in interstate commerce during the time in question.
Courts shall take judicial notice of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute (K. S. A. 60-409 [a]), and they may judicially notice such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute (60-409 [b\ [3]), and also specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible source of indisputable accuracy (60-409 [b] [4]). It should be noted the taking of judicial notice under 60-409 (b) is permissive, but not mandatory, as to the things therein mentioned, absent compliance with 60-409 (c) (Gard’s Kansas Code of Civil Procedure, p. 375), which provides:
“Judicial notice shall be taken of each matter specified in subsection (b) of this section if a party requests it and (1) furnishes the judge sufficient information to enable him properly to comply with the request and (2) has given each adverse party such notice as the judge may require to enable the adverse party to prepare to meet the request.”
K. S. A. 60-410 (c) provides:
“If the information possessed by or readily available to the judge, whether or not furnished by the parties, fails to convince him that a matter falls clearly within section 60-409, or if it is insufficient to enable him to notice the matter judicially, he shall decline to take judicial notice thereof.”
In Brandon v. Lozier-Broderick & Gordon, 160 Kan. 506, 163 P. 2d 384, this court stated:
“Under the doctrine of judicial notice courts take cognizance without proof of facts known generally by well-informed persons, but not of particular facts not of common notoriety, of which they have no constructive knowledge, or which may be disputed by competent evidence.” (Syl. If 3.)
The difficulty here is manifest. Wholly aside from any question of ultimate consumer limitation (which for want of facts we could not in any event decide), we simply cannot say it is indisputable that during the particular work weeks in question appellee had employees engaging in interstate commerce or in the production of goods for interestate commerce within the meaning of the act. We are cited to no cases, and are aware of none, where the doctrine of judicial notice has been so far extended.
Appellants would take comfort from an isolated expression used in Maryland v. Wirtz, supra. Taken in complete context, we think that decision, however, cautions against that which appellants would invoke here. That suit by a number of states and one school district was for declaratory judgment and injunctive relief and involved operation of both hospitals and schools. It was stipulated the state of Maryland as well as the other plaintiff states had, in their operation of schools and hospitals, spent large sums of money for supplies and equipment in out-of-state purchases. The trial court declined to issue either an injunction or a declaratory judgment. In affirming the trial court’s refusal to issue judgment declaring the plaintiffs had no employees engaged in commerce or in the production of goods for commerce, including employees handling, selling or otherwise working on goods that have been moved in or produced for commerce by any person, the court stated:
“Appellants ask us to declare that hospitals and schools simply have no such employees. The word ‘goods’ is elsewhere defined to exclude ‘goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.’ 29 U. S. C. § 203 (i). Appellants contend that hospitals and schools are the ultimate consumers of the out-of-state products they buy, and hence none of their employees handles ‘goods’ in the statutory sense.
“We think the District Court was correct in declining to decide, in the abstract and in general, whether schools and hospitals have employees engaged in commerce or production. Such institutions, as a whole, obviously purchase a vast range of out-of-state commodities. These are put to a wide variety of uses, presumably ranging from physical incorporation of building materials into hospital and school structures, to over-the-counter sale for cash to patients, visitors, students, and teachers. Whether particular institutions have employees handling goods in commerce, cf. Walling v. Jacksonville Paper Co., 317 U. S. 564, may be considered as occasion requires.” (pp. 200-201.)
We cannot supply the deficiency as requested, and in its absence must conclude the trial court properly denied relief under the Fair Labor Standards Act.
Appellants further assert the trial court erred in denying them alternative relief based on appellee’s breach of the contracts of employment by failure to pay compensation for overtime performed. Appellants contend that in sustaining a motion for involuntary dismissal as to this claim the trial court wrongfully weighed and evaluated evidence and disregarded evidence favorable to their cause. In support of this argument they cite paragraph 2 of the syllabus in Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P. 2d 575. We shall not repeat that upon which appellants rely. Suffice it to say the rule therein announced was, in order to bring our practice into conformity with the federal'practice, specifically overruled in Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P. 2d 847, in which this court held:
“Where the defendant in an action tried to the court without a jury moves for involuntary dismissal of the action at the close of the plaintiff’s case pursuant to the provisions of K. S. A. 60-241 (h), based on the ground that upon the facts and the law the plaintiff has shown no right to relief, the trial judge has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case. . . .”
See also Waterstradt v. Board of Commissioners, 203 Kan. 317, 454 P. 2d 445.
Appellants Wiles and Razey had contracts providing that authorized overtime was to be paid at one and one-half times the regular hourly rate. Their contracts required their overtime to be authorized either by the superintendent or the school principal. Mrs. Razey was very vague in her testimony as to the overtime she may have worked. The only record offered in her behalf was that kept by Wiles who had no power to authorize overtime work for her. Apparently he did not keep a daily log of her overtime but later struck an average based upon the total period of time she was employed. She conceded Wiles’ record was incorrect. She was paid for all the overtime hours she turned in. Wiles was paid for the overtime performed by him which was authorized by the superintendent. No authorization for any other overtime performed by either Wiles or Razey was shown.
Appellant Schroeder had no contract which provided he was to be paid overtime and he did not turn in any overtime. No one told him riot to turn in overtime — he just did not turn it in and he made no demand for it prior to filing his lawsuit. He was paid for time he turned in. He testified the work was there to be done and doing it was “my own idea”.
A specific element of appellants’ contracts was that overtime hours to be compensable should be authorized. Having failed to show this authority they cannot recover (Jackson v. Derby Oil Co., 157 Kan. 53, 139 P. 2d 146; Gale v. Fruehauf Trailer Co., 158 Kan. 30, 145 P. 2d 125).
One further matter remains for consideration. After the filing of appellants’ designation of record, appellee filed a counter designation which included parts of the record essential to a determination not included in appellants’ designation. However, the counter designation specified, in lieu of appellants’ narrative statement of the testimony, all of the testimony in verbatim question and answer form, consisting of 108 pages of transcript. Appellee made no attempt to put this testimony in narrative form or otherwise shorten it. Under our rule No. 6 (c) & (e) (203 Kan. xxv) this type of designa tion was unnecessary and unwarranted. For this breach, the costs of the entire record on appeal will be assessed one-half to appellee and one-half to appellants, balance of costs to be assessed against appellants. (See Johnston, Administratrix v. Ecord, 196 Kan. 521, 412 P. 2d 990; McElhaney v. Rouse, 197 Kan. 136, 415 P. 2d 241).
The judgment appealed from its affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Kaul, J.:
The defendant appeals from a judgment and sentence following a plea of guilty to grand larceny of an automobile (K. S. A. 21-524) and robbery in the second degree (K. S. A. 21-528). Respectively, sentences of not less than five nor more than fifteen years and not less than five nor more than ten years were imposed. The sentences were ordered to run concurrently.
The only assignment of error is that the trial court accepted the plea without inquiry as to whether it was entered by defendant voluntarily, understandingly, and with knowledge of the consequences thereof.
Defendant was originally charged with first degree robbery and grand larceny of an automobile. He retained present counsel who has represented him at all stages of these proceedings.
A preliminary hearing was had, evidence presented, and defendant was bound over for trial in the district court.
It appears that when defendant appeared for arraignment in the district court his funds had been exhausted and, at defendant’s request, Mr. G. Edmond Hayes was appointed to represent him.
On August 19,1968, defendant with his counsel appeared for trial. A jury was selected and the state began the presentation of its case. After the state’s first two witnesses had testified, the trial was adjourned for the night. The following morning defendant’s attorney approached the state’s attorney and proposed that defendant would enter a plea of guilty to second degree robbery and grand larceny of an automobile if the state would amend the information accordingly and agree not to oppose concurrent sentences.
The trial court then allowed the state to amend the information and defendant’s attorney announced that defendant would enter a plea as follows:
“Mr. Hayes: To that charge, your Honor, the defendant will enter a plea.
“The Court: How do you plead to that, sir?
“The Defendant: Guilty.
“The Court: To both the Counts?
“The Defendant: Yes, sir.
“The Court: And as they are amended then, second degree robbery and grand larceny of a car. Are you pleading guilty because you are guilty or for some other reason?
“The Defendant: Because I’m guilty.
“The Court: Do you know of any legal reason why I should not sentence you at this time?
“The Defendant: No, sir.
“The Court: What’s the State recommend on sentence?
“Mr. Hernandez: Well, your Honor, by statute I believe robbery in the second degree is —
“The Court: Not less than five nor more than ten.
“Mr. Hernandez: That is correct, your Honor, and on grand larceny of a car it’s not less than five nor more than fifteen.
“The Court: How do you recommend they run?
“Mr. Hernandez: Well, the State’s recommendation will be that they be concurrent, your Honor.
“The Court: All right. On the plea then the Court accepts the plea and will sentence the defendant. Where will he go, Lansing or the Reformatory?
“Mr. Hernandez: He will have to go to Lansing, your Honor.
“The Court: He has a prior conviction?
“Mr. Hayes: We would request, your Honor, subject to the Court’s consideration, that the defendant be sent to the Diagnostic Center.
“The Court: I’ll grant that.
“Mr. Hernandez: If the court please, here about two or three months ago, your Honor, we had some difficulty in sentencing prisoners directly to the Diagnostic Center.
“The Court: I can’t send him direct. He’s got to go to the institution, but I’ll order that he be taken over there for evaluation. All right.”
The court accepted the plea and sentences were imposed.
Defendant did not file a motion for a new trial or to withdraw his plea. Thereafter, at the request of defendant, his counsel filed a notice of appeal and this appeal was perfected.
Defendant is — and has been throughout these proceedings — represented by experienced counsel whose competency is not ques tioned, and it appears since a reduction of the charges was obtained and concurrent sentences secured, his services for the benefit of defendant have been effective in this case.
Although the dialogue between the court on one hand, and the accused and counsel on the other, was not as extensive or exhaustive as some we have examined, we cannot say the brevity of the proceedings, in which defendant’s plea was accepted, was such as to taint the validity of defendant’s plea. Defendant had taken part in a preliminary hearing in which evidence was presented. He was present with counsel on arraignment and had been through a day of trial.
It is quite obvious that defendant was ¿ware of the charges against him, the reduction thereof, the result of his sentences, and the effect of concurrent sentences. It is fair to presume from the course of these events, as reflected by the record, that defendant had been adequately informed as to all of his legal rights and of the effect and consequences of a guilty plea. (State v. Reid, 204 Kan. 418, 463 P. 2d 1020; Toland v. State, 200 Kan. 184, 434 P. 2d 550.)
Defendant cites State v. Angle, 197 Kan. 492, 419 P. 2d 935, where we said:
“. . . that a court should not accept a plea of guilty if there appears reason to believe the defendant does not understand the nature and consequences of his plea. . . .” (p. 494.)
In Angle we held that no reason was shown which would give the district court cause to believe that appellant did not understand the nature and consequences of his pleas. The same applies to the case at hand. There is nothing in this record which would have given the district court any cause to question defendant’s understanding of the consequences of his plea.
The judgment is affirmed.
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The opinion of the court was delivered by
Harman, C.:
In this criminal proceeding the state of Kansas appeals from an order quashing two counts contained in an information.
By way of background we are told that as a result of certain events allegedly occurring at a Wichita motel on October 17, 1968, the nine persons who are appellees herein were charged with various criminal offenses. After preliminary hearing they were bound over for trial to the district court of Sedgwick county upon several charges. The record is indefinite as to exactly what all these charges were but they included two counts of extortion and two counts of assault to commit extortion.
The state then filed an information accordingly against defendants, charging them jointly.
Count one of the information purportedly charged each defendant under K. S. A. 21-2412 with an offense against one Rufus W. Blake, which offense has been denominated throughout by the prosecution as extortion. Count two purportedly charged each defendant under K. S. A. 21-434 with assault against Rufus W. Blake with intent to commit a felony, the felony being the extortion named in count one. Count three purportedly charged each defendant under K. S. A. 21-2412 with an offense against one Frank Carpenter, the offense also being labeled throughout as extortion. Count four charged each defendant under K. S. A. 21-434 with assault against Frank Carpenter with intent to commit a felony, the felony being the extortion in count three. All offenses are charged as occurring October 17,1968.
We have not been supplied the other counts contained in the information, or in subsequent amendments, inasmuch as they are not of concern here but evidently at least one count charged first degree robbery and others charged extortion in connection with two other named victims.
The nine defendants filed a motion to quash counts two and four of the information (assault with intent to commit extortion). The trial court sustained this motion and the state appeals from that order.
Appellant makes several arguments in support of its contention of error. It says the statutory grounds for quashing an indictment are exclusive and contends none of them is applicable here; that the jury is the sole judge of all questions of fact and the trial court could not anticipate evidence to be offered and thereby quash a count in advance of trial on the theory each defendant could at most be convicted only of one offense arising out of and encompassing the same act; and that counts two and four constitute proper pleading.
We agree generally with the legal principles urged by appellant but the difficulty arises in their application.
The basis of the trial court’s ruling was that counts two and four alleged offenses which were based upon the same factual situation as those contained in counts one and three and in fact encompassed the same act, and under this court’s ruling in State v. Gauger, 200 Kan. 515, 438 P. 2d 455, two separate convictions cannot be carved out of a single act of criminal delinquency.
K. S. A. 62-1436 provides:
“The court may quash an indictment or information, on motion, when it appears upon its face either—
“First. That the grand jury had no legal authority to inquire into the offense charged.
“Second. That the facts stated do not constitute a public offense.
“Third. That the indictment or information contains any matter which if true would constitute a legal justification of the offense charged, or other legal bar to the prosecution.”
In State v. Cook, 193 Kan. 541, 393 P. 2d 1017, this court held the statutory grounds for quashing an information were exclusive and further stated:
“A motion to quash is not a means of testing the guilt or innocence of the defendant with respect to a crime properly charged. Our decisions, as well as those of other courts, hold that a motion to quash only reaches some defect apparent on the face of the information and that all facts therein stated must be accepted as true. A motion to quash does not involve the merits of the case, and whether the prosecution will be able to prove all the allegations of the accusation is not material. The trial court cannot anticipate what facts might be subsequently established during the trial of the case. . . . Extraneous evidence cannot be resorted to for the purpose of establishing the insufficiency of an information.” (p. 543.)
Count one, the so-called extortion charge, was laid under K. S. A. 21-2412. We had occasion to construe this statute in State v. Cruitt, 200 Kan. 372, 436 P. 2d 870. After stating that it defines the offense of blackmail and includes within its provisions several classes of offenses, we commented: “In many respects the statute lacks that clearness of meaning and accuracy that should characterize legislation, and, as drafted, is calculated to give rise to many perplexing questions.” (p. 375.) The statute is lengthy and need not be quoted here. Happily, it is one destined for repeal July 1, 1970, when our new criminal code becomes effective. The completed crime commonly known as extortion under our present code is actually that denounced in K. S. A. 21-529 (see comment by Advisory Committee on Criminal Law Revision, Kansas J. C. B., April, 1968, Special Report, p. 54).
Likewise we deem it unnecessary to quote count one, which is lengthy and contains many of the uncertainties of the statute it purports to follow, particularly because it includes elements taken from more than one of the separate offenses denounced therein. However, the gist of the offense charged appears to be an assault by appellees upon Rufus W. Blake by striking and kicking him about the head and body with intent to extort from him the employment of an unqualified employee for a particular job.
Turning to the felonious assault in count two, stripped of unessential verbiage, we find it charges appellees with an assault upon Rufus W. Blake by striking and lacking him about the head and body “with intent to commit a felony, to-wit: extortion, contrary to K. S. A. 21-2412 as set out in Count I and incorporated herein by reference as if the same were fully set out herein”.
Counts three and four pleaded the same kind of offenses committed against Frank Carpenter, in the same manner as their counterparts in counts one and two.
Appellant argues that inasmuch as the trial court could not anticipate the evidence, a rule of pleading announced in State v. Neff, 169 Kan. 116, 218 P. 2d 248, should govern, that rule being:
“Where offenses constitute one comprehensive plan, transaction, or one offense is a corollary to the other they may be joined and this is true whether they be of the same general character or not.” (p. 121.)
In Neff the defendant was charged in separate counts with the murder of his wife and his brother-in-law. He sought to quash the information on the ground it was duplicitous and further because of misjoinder of unrelated offenses not arising out of the same transaction. This court held no problem of duplicity was presented as the information did not charge more than one offense in any single count, and as to the latter ground stated:
“On a motion to quash an information, or on a motion to require the state to elect between offenses charged, on the ground two unrelated offenses are improperly joined, a trial court is not obliged to rule thereon immediately but may wait until the state’s testimony discloses whether the offenses are sufficiently related to permit their joinder in separate counts. The rule applies although from an examination of the counts on their face it appears unlikely a joinder can be sustained.” (Syl. ¶ 2.)
In Neff the court dealt with two distinctly separate offenses which is not the case here.
An accusatory pleading in a criminal case may, in order to meet the exigency of proof, charge the commission of the same offense in different ways. In such a situation a conviction can generally be upheld only on one count, the function of the added counts in the pleading being to anticipate and obviate fatal variance between allegations and proof. Thus it is proper to charge by several counts of an information the same offense committed in different ways or by different means to the extent necessary to provide for every- possible contingency in the evidence. (State v. Harris, 103 Kan. 347, 175 Pac. 153; State v. Emory, 116 Kan. 381, 226 Pac. 754.)
In State v. Gauger, supra, the defendant was charged with and in a jury trial convicted of the offenses of first degree robbery and assault with intent to commit robbery. Because of procedural errors these convictions were reversed with directions to grant a new trial. Beyond this, however, it appeared the same facts had been relied upon to prove both offenses of which defendant was convicted and this court pointed out that since the assault with intent to rob was an integral part of and necessarily included in the crime of first degree robbery the defendant could be convicted only of one offense. We gave no directions as to the further handling of the two charges upon the new trail ordered but did state this rule:
“Where a single act of violence or intimidation, which is an essential element of a first degree robbery conviction, is also relied on as constituting the separate crime of assault with intent to rob, two separate offenses cannot be carved out of the one criminal delinquency.” (Syl. ¶ 5.)
Also, we quoted approvingly from State v. Colgate, 31 Kan. (2d ed.) 511, 3 Pac. 346, as follows:
“. . . a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense. If the offender be prosecuted for one part, that ends the [prosecution] for that offense, provided, such part of itself constitutes an offense for which a conviction can be had. And generally we would think that the commission of a single wrongful act can furnish the subject matter or the foundation of only one criminal prosecution. . . . (p. 515.)” (p. 523.)
Although the posture of Gauger is different from that of the case at bar the ruling expresses a definite philosophy against double prosecution for the same act. Without attempting to lay down a hard and fast, or comprehensive, rule governing all offenses we think generally a single wrongful act should not furnish the foundation of more than one criminal prosecution.
In Rosenhoover v. Hudspeth, 112 F. 2d 667, the defendant contended two counts in an indictment charged him with but a single offense. The court stated the test to be applied in determining the' question of identity of offenses laid in two or more counts of an indictment is whether each requires proof of a fact which is not required by the others. Our own decisions are in harmony with this statement (2 Hatcher’s Kansas Digest, rev. ed., Criminal Law, § 47; 3B West’s Kansas Digest, Criminal Law, § 195).
Counts one and two on their face actually charged commission of the same wrongful act — an assault against the same victim with the same intent. The two counts did not allege commission of the same offense in different ways or manners. The requisite proof for either count would be the same. We think the felonious assault count was in every essential identical to the charge contained in count one. The trial court could come to this conclusion, as we have, from the facts pleaded in the information without resort to extraneous evidence. That which is said respecting counts one and two would be applicable also to counts three and four. Under these circumstances we cannot say the trial court erred in quashing the felonious assault charges.
The order appealed from is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, J.:
The crux of this appeal is whether the district court abused its judicial discretion in denying the appellants’ motion for an order of dismissal of their action without prejudice pursuant to K. S. A. 60-241 (a) (2). The parties concede that if the supreme court concludes the district court abused its discretion in denying the appellants’ motion, it compounded its error by sustaining the appellees’ oral motions for summary judgment against the appellants.
The appellants, Glenn Gideon and Wilmetta Gideon, are referred to as plaintiffs. Bo-Mar Homes, Inc., is referred to as Bo-Mar or defendant, and Allied Building Credits and Allied Concord Financial Corporation, being one and the same corporate entity, are referred to as Allied Building or defendant.
The plaintiffs commenced this action January 30, 1968, seeking relief from usurious interest and to recover statutory penalties and for attorney’s fee pursuant to K. S. A. 16-202 and 16-507. Their petition is summarized.
On February 24, 1964, plaintiffs entered into a written contract with Bo-Mar to purchase a lot and a premanufactured house in Russell, for the “Cash Sale Price” of $7,000, and “Finance Charge” of $5,600. On that date, they executed their promissory note to Bo-Mar in the sum of $12,600, which provided for payment in 120 consecutive monthly installments at $105 per month. They alleged that under the contract they were paying 8 percent add-on interest which was omitted from the face of the promissory note.
On April 17, 1964, plaintiffs executed and delivered to Bo-Mar a mortgage upon the house and lot to secure payment of their promissory note of February 24, 1964, in the total sum of $12,600, which note, mortgage and contract were assigned to Allied Building on that date. The contract, promissory note and mortgage were attached to the pleadings and made a part of the record.
The plaintiffs alleged they had performed each and every obligation under the contract and promissory note, and were not in default thereon. They further alleged the promissory note was usurious under K. S. A. 16-202 (a) and that pursuant to subsection (c) defendants were required to forfeit all interest and charges so contacted in excess of the amount of interest authorized by law, and in addition thereto, were required to forfeit a sum of money, to be deducted from the amount due for principal and lawful interest or charges, equal to the amount of interest or charges contracted for in excess of the amount authorized by law, and that plaintiffs should recover a reasonable attorney’s fee.
On February 21, 1968, Bo-Mar answered and admitted the plaintiffs purchased the premanufactured home which was constructed on the real estate described. It denied the promissory note was usurious, and alleged the contract, promissory note, and mortgage were assigned without recourse to Allied Building on April 17, 1964.
On September 24, 1968, Allied Building answered and made a cross-claim against Bo-Mar. It admitted the premanufactured home was constructed on the real estate described, and alleged the plaintiffs’ petition failed to state a cause of action in favor of the plaintiffs and against Allied Building; that plaintiffs were barred by laches from recovering any amount from it for the reason plaintiffs’ cause of action, if any, was barred by K. S. A. 60-514 (3) and K. S. A. 60-513, and each subsection thereof, and plaintiffs were estopped from claiming Allied Building was indebted to them in any amount, or on any legal theory, and that it was entitled to summary judgment.
For its cross-claim against Bo-Mar, Allied Building alleged that if the court found the promissory note and mortgage to be usurious, then, and in that event, it adopted the allegations of its answer so far as the same were applicable for its cross complaint, and alleged it was entitled to judgment against Bo-Mar for $12,600 with interest at 6 percent, and for such other relief as it may be justly entitled, together with costs of the action.
Prior to the filing of Allied Building’s answer alleging the plaintiffs’ cause of action was barred by the statute of limitations, the plaintiffs had submitted limited interrogatories to Bo-Mar, which were duly answered.
On October 14, 1968, the plaintiffs filed their motion for an order of dismissal without prejudice, and alleged they conclude the statute of limitations does not bar the further prosecution of their action; that K. S. A. 60-213 (d) permits the plaintiffs to set up the barred cause of action as a counterclaim in the event the now defendants should file an action for affirmative relief against the now plaintiffs upon the instruments here involved, and that pursuant to K. S. A. 60-241 (a) (2), they desired an order of the court dismissing their action without prejudice in order that their cause of action may be saved as a possible counterclaim against the now defendants in future litigation over matters and issues involved.
On November 12, 1968, the plaintiffs presented their motion for an order to dismiss their action without prejudice. Both defendants appeared and objected thereto. Following argument of counsel, the district court denied the plaintiffs’ motion. Thereupon, both defendants orally moved the court instanter for summary judgment, which the court sustained, and it entered summary judgment in favor of the defendants and against the plaintiffs, and taxed the cost of the action to the plaintiffs. This appeal followed.
The effect of the district court’s denial of the plaintiffs’ motion for an order of dismissal without prejudice was to leave them immediately vulnerable to a motion for summary judgment. That motion, when forthcoming and when sustained by the district court, was in effect an adjudication on the merits of the controversy and made any future assertion of the plaintiffs’ claim, either directly or as a counterclaim under K. S. A. 60-213 (d) res judicata. (Brown v. Kirkbride, 19 Kan. 588; Hyatt v. Challiss, 59 Kan. 422, 53 Pac. 467; Hargis v. Robinson, 70 Kan. 589, 79 Pac. 119; Holderman v. Hood, 78 Kan. 46, 96 Pac. 71; Shelley v. Sentinel Life Ins. Co., 146 Kan. 227, 69 P. 2d 737; Stimec v. Verderber, 152 Kan. 582, 106 P. 2d 708.)
K. S. A. 60-241 came into existence with the adoption of the Kansas Code of Civil Procedure in 1964. The pertinent portion of the statute reads:
“(a) Voluntary dismissal; effect thereof. (1) By plaintiff; by stipulation. Subject to the provisions of section 60-223 (c), and of any statute of the state, an action may be dismissed by the plaintiff without order of the court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs. . . . (n) . . . Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.
“(2) By order of court. Except as provided in paragraph (1) of this subsection of this section, an action shall not be dismissed at the plaintiff s instance save upon order of the judge and upon such terms and conditions as the judge deems proper. If a counter-claim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice
The statute was tailored from and is substantially the same as Federal Rule No. 41 except for the addition of the last sentence to subsection (a) (2), omitted from the quote above. Because of that relationship, decisions applying and interpreting the federal rule are persuasive and would appear to have more than usual weight as authority.
The adoption of 60-241 (a) (2) was thought necessary and desirable to prevent abusive use of the dismissal of actions by plaintiffs as exhibited in Pugsley v. Railway Co., 69 Kan. 599, 77 Pac. 579; McKinley v. Shull, 112 Kan. 837, 838, 212 Pac. 898, and in cases cited in 5 Moore F. P. 2d Ed., Ch. 41. See, also, Buckley v. Buckley, 186 Kan. 365, 350 P. 2d 44.
The purport of the statute is to require that after an answer or a motion for summary judgment has been served, if there is no stipulation for dismissal, a plaintiff who wishes to dismiss his action must secure an order of the court. Such an order is obtained by motion and the matter of the allowance of the motion is then within the sound discretion of the judge whose order is reviewable only for abuse of discretion. (Moore v. C. R. Anthony Co., 198 F. 2d 607 [1952, C. A. 10th Circuit]; 2B Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Sec. 912, pp. 110, 111.) The discretion of the court is a judicial, not an arbitrary, discretion. The sense in which the term is commonly used is defined in 1 Bouvier’s Law Dictionary, Rawle’s 3d Ed., p. 884, as “[t]he power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.”
If necessary a hearing should be had, and the court should endeavor to secure substantial justice to both parties. In exercising its discretion, the court should follow the traditional principle that dismissal be allowed unless the defendant will suffer some plain legal prejudice other than mere prospect of a second lawsuit. It is no bar to dismissal that plaintiff may obtain some tactical advantage thereby (2B Barron and Holtzoff, op. cit., supra, pp. 114, 117), or that the defendant may lose the defense of a period of limitation. (21 A. L. R. 2d, pp. 628, 629, Anno: Voluntary Dismissal-Conditions. )
Upon appellate review by this court, the inquiry is confined to whether the situation and the circumstances clearly show an abuse of discretion, that is, arbitrary action by failure of the district court to apply the appropriate equitable and legal principles to the established or conceded facts and circumstances. (Home Owners’ Loan Corporation v. Huffman, 134 F. 2d 314.)
We have noted the result of the district court’s action upon the plaintiffs, and the effect upon the defendants should now be considered. Would the defendants lose any substantial right by an order of dismissal?
It is clear that, as a practical matter, the defendants could not properly be sued again by the plaintiffs on the same cause of action, because of the bar of the statute of limitations. Any subsequent litigation would therefore have to be initiated by the present defendants upon the contracts involved. The record discloses that no other interests intervened by means of third party proceedings, nor was a counterclaim advanced by either defendant against the plaintiffs. The record further discloses that a pretrial conference had not been had, and only twenty days elapsed after the case was fully at issue before the plaintiffs filed their motion for dismissal without prejudice. It is true that one set of interrogatories had been served upon Bo-Mar and it made written answers thereto before the answer time of Allied Building had expired. Thus, the case was not at issue at the time Bo-Mar filed its answers to the plaintiffs’ interrogatories, and it cannot be said that Bo-Mar suffered any plain legal prejudice by reason of the proceedings having reached an advanced stage. As to Allied Building, no discovery was had upon it and at the time the plaintiffs’ motion for dismissal without prejudice was filed, the case was barely at issue. While it alleged a cross-claim against its co-defendant Bo-Mar (K. S. A. 60-213 [g]), the dismissal of the plaintiffs’ action would not preclude it from alleging the same facts and circumstances against, and seeking the same relief from, Bo-Mar in a subsequent action against the plaintiffs upon the promissory note and to foreclose the mortgage.
It is true the plaintiffs would have obtained what may be denominated as a tactical advantage in that they could assert their alleged claims against the defendants by counterclaim in a subsequent action commenced by the defendants without being subjected to the statute of limitations. But, as indicated, the authorities are consistent that the loss of a defense of a period of limitation does not subject a defendant to legal prejudice. (Bolten v. General Motors Corporation, [1950, CA 7th Ill.] 180 F. 2d 379, 21 A. L. R. 2d 623, cert. den. 340 U. S. 813, 95 L. Ed. 598, 71 S. Ct. 41; Klar v. Firestone Tire & Rubber Co., 14 F. R. D. 176.) Moreover, the authorities are agreed that the gain of a tactical advantage of whatever nature is not legal prejudice.
Perhaps it is true as urged by the defendants that they have been subjected to some prejudice or at least feel and anticipate some prejudice, but before the plaintiffs’ motion could be denied by the district court, the defendants must be shown to be subjected to legal prejudice by the allowance of the plaintiffs’ motion. (Meltzer v. National Airlines, Inc. [1962] 31 F. R. D. 47.) In Meltzer it was said, “[i]t goes without saying that when a defendant resists a plaintiff’s motion to dismiss, he anticipates some kind of prejudice,” and that, “[i]t has already been decided that the inconvenience or anticipated prejudice to defendant does not warrant denial of plaintiffs’ withdrawal.” (pp. 49, 51.)
Turning to the equities in the case, it was said in Lunn v. United Aircraft Corporation, 26 F. R. O. 12 (1960), that the terms and conditions which the court may impose are for the protection of the rights of the defendant, but a refusal to consider any equities of the plaintiff is a denial of a full and complete exercise of judicial discretion, and that,
“Summarizing, therefore . . . the voluntary motion to dismiss by the plaintiff under Rule 41 (a) (2), after answer, is within the sound judicial discretion of the Court after weighing all the equities of the case." (p. 18.)
It is incumbent upon courts to consider the rights of the parties and how they will be affected, and what benefits or injuries may re- suit to the respective sides in the controversy if a dismissal is granted. In the instant case, if only the equities of the defendants are to be considered, the facts and the authorities cited conclusively show they would suffer no plain “legal prejudice.” If the equities of both sides to the litigation are weighed, again there can be no doubt but that the plaintiffs were deprived of valuable rights by the district court which outweighed whatever minor prejudices the defendants might incur, if any.
It is clear that unless the district court’s judgment is reversed, the plaintiffs will be prevented from using statutes of this state prohibiting usury as a defense and counterclaim to an action which may subsequently be brought by the now defendants upon the alleged usurious contracts, and because of that judgment the plaintiffs will be unable to utilize a statute which was intended to permit legitimate counterclaims to be advanced without regard to the statute of limitations.
We conclude the defendants would suffer no cognizable “legal prejudice” had the district court sustained the plaintiffs’ motion for an order of dismissal without prejudice, and that it abused its discretion in not so ruling. It follows that the order granting the defendants’ motions for summary judgment was error as a part of, and a consequence arising from, the district court’s prior error in denying the plaintiffs’ motion for an order of dismissal without prejudice, and that summary judgment is reversed. The cause is remanded with directions that the district court vacate the judgment heretofore entered and enter an order permitting the plaintiffs to dismiss their action without prejudice “upon such terms and conditions as the judge deems proper.”
It is so ordered.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy between a landlord and tenant over the apportionment of a condemnation award.
The fee title to the real estate and improvements involved was owned by the appellants, the Bradleys, and the property was leased to Phillips Petroleum Company under a written lease dated April 30, 1960. The lease was for a term of twenty years. Lessee had the right to renew the lease for two additional terms of five years each. The primary term of twenty years commenced on December 1, 1960, when the parties agreed that the filling station constructed by the Bradleys was ready for operation by Phillips. In addition to a fixed monthly rental of $565.00, Phillips agreed to pay as additional rent one and one-half cents per gallon of gasoline sold in excess of 385,000 gallons per contract year.
The entire leased property was taken in condemnation on March 9, 1966, and all parties agreed to a settlement of $100,000.00 as the total award for the property taken. The amount of the award was paid into court. On June 3, 1966, Phillips sent the Bradleys a certified, return receipt requested letter in which Phillips exercised its option to terminate the lease in accordance with the provisions of Section 7 of the lease agreement, which reads:
“If the use of said premises as a gasoline and oil service station or the storage or sale of gasoline, oil or oil products on said premises shall be prohibited or enjoined by lawful authority, or if all or any part of said premises is taken in condemnation, making premises unsuitable for use as a service station, lessee may, at its option by giving to Lessor thirty (30) days’ notice of its intention so to do, terminate this lease upon payment of all rentals due up to the expiration of said thirty (30) day period.”
On January 5, 1968, the trial court entered a pre-trial memorandum decision containing certain conclusions of law relating to the rights of the lessee and the Bradleys as a result of the talcing, the lease and the letter exercising the option to terminate the lease. The conclusions are in part as follows:
“2. The lease did not provide for an apportionment of the award nor exclude the lessee from sharing in the award.
“3. The complete and entire right, title and interest of the plaintiff, lessee, and the landlords’ entire estate in the leased premises were taken on March 9, 1966, and all of their respective interests therein were extinguished.
“4. The total taking on March 9, 1966 terminated the lease by operation of law, and all of the rights of the lessors and lessee became fixed at that time.
“5. The notice by the Phillips Petroleum Company purporting to terminate the lease had no legal effect, and does not bar it from sharing in the award to the extent of the fair market value of its leasehold interest over the term of years after March 9, 1966.”
Pursuant to a stipulation between Phillips and the Bradleys an order was entered authorizing and directing the payment of $56,078.84 out of the agreed award to the holder of the mortgage and further directing that said sum be credited against the interest of the Bradleys. On the hearing for apportionment, the remaining $43,921.16 of the award was divided between the parties by the trial court by the awarding of $22,395.46 to Phillips and $21,525.80 to the Bradleys. The award of $22,395.46 to Phillips was predicated upon a finding that it had a value in the lease of $20,708.46 over a remaining term of 25 years, a value of $1,187.00 for fixtures and equipment not removed, and a value of $500.00 as the cost of removing certain equipment.
The appellants take issue with the conclusions of the trial court and contend that (1) the respective rights and interests of the parties in the leased premises were not extinguished by the taking in condemnation on March 9, 1966, (2) the total taking did not terminate the lease by operation of law fixing the rights of the lessors and lessees as of the time of the taking and (3) the notice of Phillips Petroleum Company terminated the lease and barred the lessee from sharing in the award.
We cannot agree with the contentions made by appellants.
In State Highway Commission v. Safeway Stores, 170 Kan. 413, 226 P. 2d 850, we held:
“A tenant for years under a written lease is an 'owner’ of property within the meaning of that term as used in our condemnation statutes and is entitled to compensation if his leasehold estate is damaged by the exercise of eminent domain.” (Syl. ¶ 1. The decision was set aside on different grounds on rehearing, State Highway Commission v. Safeway Stores, 170 Kan. 545, 228 P. 2d 208.)
The above rule was again announced in Elsenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P. 2d 539.
The right of the lessee to compensation, as any other right, may be waived or contracted away by the terms of the lease. However, the lease in question contains no such provision.
It is the very general rule that the taking of an entire tract of land under lease by eminent domain abrogates the relation of landlord and tenant. (49 Am. Jur. 2d, Landlord and Tenant, § 990, p. 960.)
In Kansas Homes Development Co. v. Kansas Turnpike Authority, 181 Kan. 925, 317 P. 2d 794, we stated at page 929 of the opinion:
“The condemnation proceedings in this controversy divested the owner, lien holders and all other interested parties of all title to the land acquired and vested it in the Authority upon payment of the commissioners’ appraisement and award of $60,000 (G. S. 1955 Supp. 68-2006) free and clear of any liens or encumbrances whatsoever (Federal Land Bank v. State Highway Comm., supra [150 Kan. 187, 92 P. 2d 72]), but it did not have the effect of discharging the obligation of paying the liens or encumbrances of record. . . .”
In Newman v. Commonwealth, 336 Mass. 444, 146 N. E. 2d 485, cited by appellants, we find the following statement:
“A valid taking of the whole premises, which divests the lessor’s title, terminates a lease. . . . But a taking of a portion of leased premises, apart from some agreement of the parties, does not. . . . The respective rights of the parties can, of course, be modified by a clause in the lease. . . .” (p. 446. Citations omitted.)
The lease agreement between Phillips and the Bradleys does not have any specific provisions determining how each party will share in an award in the event the property is condemned. Provision 7 of that agreement gives the lessee the option to terminate the lease if the property is condemned, making the premises unsuitable for use as a service station. This option to terminate has meaning where only a portion of the property is taken in the condemnation action. Lessee, in the event of a partial taking, could then decide whether to stay under the lease agreement and share in the condemnation award or to terminate the lease entirely and not share in the condemnation award. However, where there has been a total taking the lessee’s rights to share in the award become vested at the time of the taking, absent an agreement to the contrary.
Appellants argue that appellee, by sending written notice to terminate the lease to the landowners on June 3, 1966, almost three months after the entire tract had been condemned, exercised its option to terminate and thus is barred from sharing in the award. We must agree with the trial court that as Phillips’ rights to share in the condemnation award were determined when the entire tract was taken in March, 1966, the notice to terminate had no legal effect.
We have not ignored the foreign cases cited by appellants. They are not in point here. They either deal with cases where there was a partial taking or where the landlord had reserved an absolute right to cancel the lease in the event the premises were taken by condemnation.
We must conclude that the taking by eminent domain of the entire premises divested the landlord’s title and terminated the lease. The rights of the landlord and tenant to compensation were fixed as of the date of the taking.
The appellants object to the sufficiency of the evidence to support the trial court’s findings. We have examined the record and find in the testimony of the expert witness and records submitted by the appellee substantial competent evidence to support the trial court’s findings as to the value of the leasehold interest and the apportionment of the compensation. Space does not justify a lengthy presentation of the evidence.
Finally, appellants contend that the court erred in allowing appellee the sum of $1,187.00 for the value of attached fixtures not removed under the terms of the lease prior to the condemnation of the entire tract and the sum of $500.00 for the cost of removing certain equipment.
Provision 4 of the lease agreement provides:
“All pumps, machinery, apparatus and equipment furnished by Lessee to the leased premises shall be and remain the property of Lessee, and Lessee shall have the right, at its option, at any time before the expiration or termination of this lease, and for a reasonable time thereafter, to remove same.”
The appellants contend that the leasehold interest and improvements or fixtures of a tenant should be valued together as a unit and not separately, and in support of its position quotes from 27 Am. Jur. 2d, Eminent Domain, § 292, p. 101, which reads as follows:
“Primarily the property is to be valued as a whole without regard to who put the buildings or fixtures there, or the right to remove them. So, upon the condemnation of leased premises which include fixtures or other improvements affixed or annexed to the premises by the lessee, which, as between the lessor and lessee, were to remain the property of the lessee, the view has been taken that in determining the compensation due the lessee, the leasehold and improvements should be valued as a unit, and not as separate items. . . .”
The appellee contends that the fixtures should be valued sepa xately from the leasehold and in support of its contention cites the authorities which immediately follow.
In 27 Am. Jur. 2d, Eminent Domain, § 292, p. 99, it is stated:
“. . . If, as against the lessor, the lessee has the right, prior to or upon the expiration of his term, to remove fixtures, structures, or other improvements installed or erected by him upon the property taken, he is, generally speaking, entitled to be compensated for such improvements. ...”
The same rule is stated in an annotation at 3 A. L. R. 2d, p. 302:
“Generally speaking, a lessee is entitled to compensation for fixtures, structures, or other improvements installed or erected by him upon property taken under eminent domain, if, as against the lessor, he has the right to remove such improvements prior to or upon expiration of his term. . . .”
The above statements are not in conflict with authority quoted by appellants. Appellee’s quotations are authority for the proposition that the lessee should be compensated for fixtures added by him if he has the right to remove them. The appellants’ quotation states how the lessee is to be compensated for the fixtures.
It has long been the rule that where leased property is taken by eminent domain, it is ordinarily valued as though held in a single ownership rather than by separately valuing the interests of the lessor and lessee, and the compensation for the property taken or damaged is apportioned by the district court between the lessor and lessee according to their respective interests. The condemner has no interest in the apportionment proceedings. It has met its obligation when it has paid into court the total amount of the award. (29A C. J. S., Eminent Domain, § 198, p. 873.)
We think the better rule is that insofar as possible the leasehold estate be valued in the same manner for the purpose of apportionment and the leasehold and improvements should be valued as a unit rather than separate items.
However, there must be exceptions to all rules if just results are to be obtained in all cases. Here there was an absence of a market value in the sense there was a lack of evidence of a market value. It was necessary that the expert witnesses base their appraisal of the fair market value on the gallons of gasoline sold and apply thereto various formulas and tables, one of which was Inman’s coefficient for a lessee’s profit.
In arriving at the market value in such a manner, the value of the fixtures which the lessee had the right to remove and which were taken in the condemnation proceedings was not included. It was, therefore, properly added by the trial court.
We believe the rule announced in Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P. 2d 539, applies here. On page 779 of the opinion we stated:
“The absence of market value, in the sense that there is a lack of evidence of comparable sales, does not prevent recovery by the owner in the event of condemnation. It occasionally happens that a parcel of real estate or a leasehold interest taken by eminent domain is of such a nature, or is held or has been improved in such a manner, that, while it serves a useful purpose to its owner, he would be unable to sell it at anything like its real value. Where the usual means of ascertaining market value are lacking, or other means must from necessity of the case be resorted to, it is proper to determine the market value by considering the intrinsic value of the property, and its value to the owners for their special purposes. The owner of the property taken is not required under such circumstances to make any pecuniary sacrifices. He is entitled to whatever the property is worth to him, or anyone else, for any purpose to which it is adapted. . . .”
We conclude that, under the circumstances in this case, the trial court properly added to lessee’s apportioned share the value of the fixtures which were placed on the real estate by the lessee and which it had a right to remove.
The question of the allowance of cost of removing personal property not taken in the condemnation proceeding presents another difficult problem.
An examination of the record does not give definite information on the character of the property removed by the appellee. The trial court in his memorandum decision states:
“The depreciated value of the underground tanks and related filling station equipment not recovered by Phillips Petroleum Company was $1,187.00, and the cost of removing the personal property, hoist, etc. which were removed was $500.00.” (Emphasis supplied.)
However, in his conclusions of law he identifies the items removed as “tanks, etc.” Regardless of the exact nature of the items removed they were treated as personal property and not included in the property condemned and covered by the condemnation award. Although the lease gave the lessee the right to remove it was not to be compensated for the removal under the terms of the lease. We had this question before us in the recent case of City of Manhattan v. Eriksen, 204 Kan. 150, 460 P. 2d 622. We held:
“In an eminent domain proceeding where there is a taking of the entire leasehold estate, file cost of removal by the lessee of his goods, wares, merchandise and other personalty for a reasonable distance is not a proper element of damage for which he may be compensated under the Eminent Domain Procedure Act (K. S.A. 26-513).” (Emphasis supplied.)
We are forced to conclude that the court erred in the allowance of $500.00 to the lessee for the removal of personal property.
The judgment is affirmed as to all issues except the allowance of $500.00 for removing personal property and as to that issue it is reversed.
approved by the court.
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The opinion of the court was delivered by
Fromme, J.:
This action was brought to recover for injuries to and death of Beverly Jean Stiger resulting from burns received in an apartment rented by her from the defendant. Her clothing was ignited by contact with an open-faced radiant gas heater located in the living room of her apartment. She had lived there from August 1965 to March 1966 when this tragedy occurred.
The trial court sustained defendant’s motion for judgment at the close of plaintiff’s evidence.
The particular heater is described in the record as an open-faced radiant gas heater. When put in operation it is connected with a gas source and a small valve on the side opens the burner to gas. The gas is lighted with a match in the front at the base of the radiants. The burner orifices are at the base of a series of ceramic waffled radiants. When the gas from the orifices is lighted the flame causes these radiants to heat and they became almost incandescent. The heat from the radiants is directed outward and upward from the face of the heater. The flame stays within and behind the radiants. Such a heater is not designed to be attached to a vent pipe. It has a metal guard in front five inches away from the radiants and five and a half inches high from the base.
The testimony established that this particular heater was not defective and that it was operating in a proper manner. It was installed in the apartment prior to the time Miss Stiger rented the same from defendant. The heater was first installed in a bedroom and later in 1959 or 1960 it was moved into the living room at the suggestion of someone in the Wichita fire inspection department. The Wichita fire department had inspected the heating units in this building one month before the tragedy occurred. Nothing was said concerning this particular installation. A member of the Wichita fire rescue squad who was called to the scene said that the installation and use of the heater was not in violation of the city ordinances at that particular time.
A deputy state fire marshal investigated the tragedy within an hour after it occurred. He testified this type of heater is a “death trap”. It is dangerous because people stand too close and their clothing catches fire. He talked with Beverly Jean Stiger in the emergency room of the hospital. Miss Stiger told him that on arriving home she felt cold. She lighted the heater and then went into the kitchen to put a frozen food dinner in the oven. She then returned to the living room and backed up to the heater to get warm. Her dress caught fire. With her clothing on fire she first ran into the bathroom and then downstairs where the flames were finally extinguished.
She died as a result of the burns received.
The deputy state fire marshal further testified the heater was properly installed when he saw it. The flame remained within the radiants. The heater was located with sufficient distance between the heater and the wall. It was connected with the gas source by a rigid iron pipe. The heater had the American Gas Association sticker attached to the back of the appliance. This indicated it had been approved by the association as a safe appliance.
Negligence was alleged in the petition as follows:
“That the deceased, Beverly Jean Stiger, rented the apartment as aforesaid, from the defendant, prior to the time of the accident heretofore stated; that through the negligence and careless actions and omissions on the part of the defendant, the said Beverly Jean Stiger was so burned as to cause her death. That the defendant provided the plaintiff with an open faced gas heater for her apartment which was defective, unsafe, dangerous, improperly constructed, and designed in such a manner that it would readily cause damage or injury to persons and in particular the deceased.”
The pre-trial conference order provided:
“Plaintiffs claim the defendant was guilty of the following acts of negligence:
“A. Violation of K. S. A. 36-304 and 36-305 in that the heating unit in the room where the fire occurred did not comply with the requirements for an apartment or a rooming house under these statutes, specifically Requirement No. 41-1-13.
“B. Violation of the Wichita City Code 21.16.060, 21.16.070 and 21.16.080 in that the room was smaller than the City Code provides and the heater was located in a sleeping room in violation of the City Code.
“C. Installing and proving (sic) a tenant with a defectively designed and unsafe heater in that the heater had an inadequate guard to keep clothing out of the flame.
“D. Failing to warn the deceased of the danger in using said heater in said condition.”
A jury was called to try the case. Immediately preceding the trial the plaintiffs moved for permission to amend the pre-trial order to permit evidence that the open-faced gas radiant heater was being used for a purpose and in a manner other than that for which it was originally designed. Plaintiffs for the first time insisted that the heater was designed solely for use in fireplaces or in other similar places where the heater would be recessed and vented.
The defendant resisted this request saying she had not previously been advised this would be an issue. She advised the court she had no evidence to counter such a contention. If permission to amend was granted she would insist upon a continuance in order to obtain evidence against this new contention.
None of the plaintiffs’ witnesses were permitted to testify that this heater was originaly designed solely for use in fireplaces or in other similar places where the heater would be recessed and vented because neither the petition nor the pre-trial order disclosed such an issue would be presented.
The plaintiffs predicate error on this refusal to allow amendment of the pre-trial order.
A pre-trial order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. (K. S. A. 60-216.)
The pre-trial conference and the order entered thereon are an important part of the procedural process. They are provided to acquaint each party in advance of trial with the factual contentions of the opposite parties as to matters in dispute. The opportunity for maneuver and surprise during the trial is reduced. As a result of the pre-trial conference all parties are better able to prepare their testimony on the issues to be tried. (Brown v. Hardin, 197 Kan. 517, 519, 419 P. 2d 912; Evangelist v. Bellern Research Corporation, 199 Kan. 638, 641, 433 P. 2d 380; Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 358, 437 P. 2d 219.)
Judicial discretion is granted to the trial court in permitting or refusing modification and amendment of the issues outlined in a pre-trial order. Absent a manifest abuse of discretion the trial court’s order refusing modification should be upheld on appeal. (K. S.A. 60-216; Trimble, Administrator v. Coleman Co., Inc., supra.)
The amendment of the pre-trial order sought by plaintiffs in this case would have injected a new issue into the trial. The issue would have had to be resolved by testimony concerning the design and purpose of this particular heater. The issue was of a nature that expert testimony might well have been necessary. It was admitted the defendant had no knowledge of such facts. The right to amend was sought the morning of the trial. Under these circumstances the trial court did not abuse its discretion in refusing to permit amendment of the pre-trial order.
In sustaining defendant’s motion for judgment at the close of plaintiffs’ evidence the court reasoned that the dangerous characteristic of the heater (open flame) was obvious and patent, that this characteristic was equally discernible to the tenant and to the landlord and that the landlord had no duty to warn the tenant or call this obvious and dangerous characteristic of the heater to the attention of the tenant.
Plaintiffs submit this was error. They contend the case of Nave v. Hixenbaugh, 180 Kan. 370, 304 P. 2d 482, is controlling here and that the judgment should be reversed.
In Nave the plaintiff stopped in a filling station while traveling on a highway. Her skirt was ignited while standing in front of a gas stove. The stove was being operated by the defendant in a public area of the station for the convenience of his customers. The stove was defective. Squares of isinglass in the front of the stove had been replaced with squares cut from tin cans. There was evidence that the stove had no draft diverter. When the wind blew down the chimney and the door of the station was opened a down draft was created which caused flames to come out of openings in the front of the stove.
The case is not controlling here. In Nave the plaintiff was a business invitee and as such the defendant was obligated to maintain the premises in a reasonably safe condition for his customers. The defendant was found guilty of negligence in failing to keep the stove in a reasonably safe condition. The discussion in the opinion concerning knowledge and appreciation of the danger was directed toward resolving the question of contributory negligence of a business invitee.
Reverly Jean Stiger was not a business invitee in the present case. The heater in her quarters was not located in an area open to the public or to the other tenants living in the building. The heater had been located in her private quarters. She had operated and used it to heat her living room from August 1965 to March 1966. This included the fall and winter months. Plaintiffs’ witnesses testified that the heater was not defective. It was operating in a proper manner immediately after the tragic incident.
The legal duty owed to a tenant is not the same as that legal duty owed to a business invitee.
In Bailey v. Kelly, 93 Kan. 723, 145 Pac. 556, a 16 year old employee of a tenant fell through a loose cistern cover and was killed. The landlord did not advise the tenant or his employee of the danger from this loose cistern cover. A plaintiffs verdict was reversed on appeal. This court held the landlord was not subject to liability for physical harm resulting to the tenant and others from a dangerous condition which was obvious, known to the tenant and which existed at the time the tenant took possession. In the absence of a covenant by the landlord to repair the tenant accepts leased property subject to its obvious, patent or known dangers. (See Restatement of the Law [Second] Torts 2d § 352.)
The case of Mathes v. Robinson, 205 Kan. 402, 469 P. 2d 259, is cited by plaintiffs. It is not controlling here because the dangerous condition of the premises in Mathes was from a latent condition, the emission of carbon monoxide gas which was not obvious to sight or smell.
The rule of liability as between landlord and tenant was considered and applied in Branstetter v. Robbins, 178 Kan. 8, 283 P. 2d 455. In Branstetter the landlord gave no warning of the danger from a can of barnyard spray which remained in a food cabinet in the house rented to a tenant. The court held:
“In a case of landlord and tenant there is a duty on the landlord to disclose to the tenant all hidden and latent defects in the premises within his actual knowledge, and his failure to do so will make the landlord liable in damages to the tenant, or a member of the tenant’s family, for injuries directly resulting from undisclosed defects. On the other hand, a landlord is not required to be an insurer of his tenant and the other members of the tenant’s family. (Syl. ¶1.)
“Where a defect complained of is as discernible, upon reasonable investigation, to the tenant as it is to the landlord, there is no duty of disclosure owned by the landlord to the tenant. (Syl. ¶ 2.)
In the present case the dangerous characteristic of the heater (open flame) was obvious. The tenant lighted the heater. The heat emanating from the open gas fired radiants was obvious and the consequences of contact with the open flame could have been appreciated by any child. The decedent was nineteen years of age and had operated this heater throughout the fall and winter of 1965-66. This was not a hidden or latent condition. The landlord had no duty to warn of what was obvious and known to the tenant.
Other states have held an unprotected gas heater and other similar heating equipment in rental quarters constitute a patent condition equally discernible to the tenant and landlord. The landlords in the following cases were relieved of liability for such injuries: Hyde, Next Friend v. Bryant, 114 Ga. App. 535, 151 S. E. 2d 925; Yuppa v. Whittaker, 88 R. I. 214, 145 A. 2d 255; Davis v. Marr, 160 Colo. 27, 413 P. 2d 707; Cooper v. Boston Housing Authority, 342 Mass. 38, 172 N. E. 2d 117 and Hanson v. Luft, 58 Cal. 2d 443, 24 Cal. Rptr. 681, 374 P. 2d 641.
The plaintiffs contend that the defendant was operating an apartment house as defined by K. S. A. 36-104 and was subject to a regulation adopted by the hotel and restaurant board effective January 1, 1966, which prohibited open-faced gas heaters in apartment houses except those installed in recessed vented fireplaces. They contend the landlord violated a duty to the tenant placed upon her by this statute and regulation.
The statute in pertinent part reads:
“Every building or other structure, together with any building or structure used in connection therewith, kept, used, maintained, advertised, or held out to the public to be a place where furnished or unfurnished living rooms for light housekeeping accommodations may be rented as a single room or as a suite of rooms, containing four or more single units or suites, or both, regardless of the number of tenants therein, and regardless of whether any such room or suite of rooms is occupied by an owner or operator of such a building or structure, shall, for the purpose of this act, be deemed an apartment house.’,’ (Emphasis .supplied.)
At the end of plaintiffs’ evidence the facts were not disputed. Applicability of a statute based upon undisputed facts is not a question of fact for a jury. The question becomes one of statutory construction to be determined by the court. (State, ex rel., v. Moore, 154 Kan. 193, 197, 117 P. 2d 598; State ex rel., v. Mills, 171 Kan. 397, 400, 233 P. 2d 720.)
The plaintiffs’ evidence established the following facts: The defendant purchased the building sometime prior to 1959 and has maintained it without change since that time. There were two rental suites in the south half of the building. The decedent lived in the south upstairs apartment. Each suite had separate outside doors and consisted of a living room, bedroom, kitchen and bathroom. Roth south suites were held for rent to the public and occupied by tenants. The upstairs apartment had an entryway from the front with an enclosed staircase leading to that apartment. There were four mail boxes on the front of the building. The north half of the building was similarly arranged with a living room, bedroom, kitchen and bath both upstairs and down. However, the stairway was an open staircase leading to the downstairs living room. The living room downstairs was used by the defendant as a reception or waiting room for defendant’s customers who came to her for psychic analysis. Defendant had a maid-receptionist who lived in the balance of the downstairs apartment. The maid’s quarters were separated from the reception room by a curtain or drape. There was no door which could be locked to insure the maid’s privacy. The defendant testified that when she purchased the building it contained three family units exactly as they were when this tragedy occurred. No portion of the north half of the building had ever been rented by her to other persons.
The maid testified that she received board, room and a weekly salary. However, the maid and the defendant cooked their own separate meals.
The defendant never applied for an apartment house license. A representative of the state hotel and restaurant board which regulates and licenses apartment buildings inspected the building on several occasions prior to the tragedy. On the most recent occasion the defendant advised the representative she had three units. There were two rental units on the south and one unit occupied by herself and the maid on the north side.
No license was required by the board.
Under these facts we must determine if the building was subject to regulation as an apartment house under K. S. A. 36-104. If the statute was not applicable, the defendant did not violate the apartment house regulation prohibiting open-faced gas heaters and the trial court’s judgment was correct.
The defendant-appellee contends the interpretation placed upon the statute by the hotel and restaurant board, in not requiring a license, should be given controlling significance under the rule expressed in Cities Service Gas Co. v. State Corporation Commission, 192 Kan. 707, 391 P. 2d 74. We do not consider the failure to license the building controlling in this case although it is significant.
The interpretation placed upon a statute by an administrative agency whose duties are to carry the legislative policy into effect should be given consideration and weight when the statute is ambiguous and the intent of the legislature is not clear. (See Lowden v. Garvie, 152 Kan. 388, 103 P. 2d 832; Graves v. Armstrong Creamery Co., 154 Kan. 365, 118 P. 2d 613, 140 A. L. R. 1267n.) However, this does not mean this court must follow an administrative interpretation placed upon a statute when the interpretation of the administrative body is erroneous. We will examine this statute in light of the facts of this case to determine its applicability.
There can be no doubt after reading K. S. A. 36-104 that the statute is ambiguous. In defining a building subject to license as an apartment house the statute refers to every building kept, used, maintained, advertised or held out to the public. A building merely being advertised but not being used could hardly be subject to a license. It is the use of the building and not the advertising which is intended to be licensed and regulated. Yet these words are used in the alternative. The statute covers single rooms or suites of rooms which may be rented. The required number of such rooms or suites is set at four, regardless of the number of tenants and regardless of whether the owner or operator occupies any such room or suite. A tenant is not further defined.
We have previously held when the owner lives in the premises and rents three apartments to others the building falls within the definition. The owners living quarters are included to make the fourth suite. (State v. Pendarvis, 181 Kan. 560, 567, 313 P. 2d 237.)
In the present case the building was originally constructed in a manner which would accommodate four tenants or families. The defendant had retained two of these for her own use and that of her employee. In a technical sense those rooms reserved had not been kept, used, maintained, advertised or held out to the public. The living quarters furnished without charge to an employee (such as the maid, chauffeur, cook or yardman) living on the premises of the owner-employer are not rooms or suites held out to the public for rent within the meaning and intent expressed in K. S. A. 36-104. These are kept for the use of the employees of the owner. To interpret the statute otherwise would require a person to be licensed if he furnished living quarters or rooms to three employees of the household.
Therefore, we hold the defendant’s building was not subject to the regulatory provisions of the hotel and restaurant board prohibiting the use of open-faced gas burning heaters. Defendant violated no duty to plaintiff. The district court did not err in sustaining defendant’s motion for judgment at the close of plaintiffs’ evidence.
Accordingly the judgment is affirmed.
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The opinion of the court was delivered by
Six, J.:
This is a personal injury case arising from a blend of theories — premises liability and ordinary negligence.
The issues relate to: (1) the numerical composition of civil juries under K.S.A. 1990 Supp. 60-248(a) and (g); (2) the propriety, in closing argument, of reaching beyond the record to invoke the word image of “the Hyatt Regency collapse”; (3) building codes; (4) punitive damages; and (5) prior accident evidence.
We reverse on the jury composition issue, address the remaining issues, and remand for a new trial.
Daniel H. Glynos, a minor, and Nicholas Glynos, his father, sued Steven D. Jagoda and David B. Feingold, partners of MH Company, and Nathan G. Jagoda, Frank Morgan, and I.I. Ozar, as partners of NFI Management Company, for damages sustained by Daniel at an apartment complex in Overland Park, Kansas. The jury returned a verdict for $61,722.25, assessing 10% fault to Daniel and 90% fault to the five defendant apartment owners and managers (Meadowlark Hill). The trial court entered judgment on the jury verdict in the amount of $55,595.03 plus costs. Meadowlark Hill appeals. Plaintiffs cross-appeal the trial court’s (1) failure to submit the issue of punitive damages to the jury and (2) exclusion of evidence of a prior plate glass accident at another apartment complex owned and managed by Meadowlark Hill.
Jurisdiction is under a K.S.A. 20-3018(c), upon our motion for transfer to this court from the Court of Appeals.
Facts
Daniel, age 15, was injured when he collided with a sliding glass door separating the apartment complex’s indoor and outdoor swimming pools. He was visiting his mother, who lived at the complex.
Daniel testified that he climbed out of the indoor pool, pushed water out of his eyes, and walked into the sliding glass door. He looked and thought the door was open. His eyesight was blurred because of the chlorine from the pool water. There was a sun glare on the water of the outside pool. The accident occurred at approximately 7:30 p.m. on August 15, 1985. Daniel suffered multiple lacerations which required surgery.
The 400-unit complex was constructed in 1968. Daniel collided with an ordinary plate glass door. At the time the complex was constructed, plate glass was sufficient to meet applicable building codes. The building codes had been modified, prior to the time of Daniel’s accident, to require safety glass in sliding glass doors. The revised codes do not require replacement with safety glass unless the plate glass is replaced for other reasons, such as repairing broken glass.
Prior to trial, Meadowlark Hill moved for summary judgment on plaintiffs’ negligence claim based on the failure to replace the plate glass with safety glass. Meadowlark Hill argued that because it complied with the building codes, it had no duty, as a matter of law, to replace plate glass with safety glass. Plaintiffs argued that compliance with building codes is no defense to common-law negligence where a reasonable landlord would have taken additional precautions to maintain safe premises. The trial court denied the Meadowlark Hill motion.
Plaintiffs presented evidence that another resident of the complex, Steven Hayes, had been injured in a similar accident in 1984 when he walked into a sliding glass pool door, cutting his forehead. Hayes informed the apartment manager. Only the glass door broken by Hayes’ impact was replaced with safety glass. After Hayes’ accident, Meadowlark Hill did not post signs, stickers, or other warning labels around the indoor pool.
Following the presentation of all the evidence, Meadowlark Hill moved for a directed verdict on plaintiffs’ claims for punitive damages and for negligence. The trial court ruled that there had not been a proper threshold showing to justify submitting the issue of punitive damages to the jury. The motion for a directed verdict on the negligence claim was denied.
Testimony of the Safety Engineer
Plaintiffs presented the expert testimony of Donald Dressier, a safety engineer. A summary of Dressler’s testimony reflects that a sliding glass door was defined as a “hazardous location” by the 1984 Building Official Code Administration (BOCA) Building Code enacted by the City of Overland Park and in effect at the time of the accident. The building code requires safety glass in all new and replaced sliding glass doors. The BOCA code references a national industry standard, American National Safety Institute (ANSI) Standard Z97. Building codes are bare minimum standards. Federal law enacted in 1977 requires safety glass in sliding glass doors. Ordinary plate glass is weaker than safety glass and breaks into long shards and pieces with edges sharper than a surgeon’s scalpel. In contrast, safety glass is three to ten times stronger than ordinary plate glass and breaks into little marble sized fragments with which it is almost impossible to cut oneself. Plate glass is the cheapest and weakest of all architectural glass. Plate glass weakens with age and with exposure to chlorine. If the sliding glass door had been constructed of safety glass, it is likely Daniel would not have broken the glass.
Dressier also testified that the sliding glass doors separating the indoor and outdoor pools were a safety hazard because it was difficult to tell if glass was in the doors or whether the doors were open or closed. There were approximately 20 other fixed panels or sliding glass doors around the pool area. Safety decals should have been placed on the fixed panels and glass doors to warn of the presence of glass and to indicate whether the door was open or closed. Something as simple as a piece of tape could work. Safety decals should be used even with safety glass to prevent bumping into the glass.
Claims of the Parties
The trial court submitted the case to the jury. Instruction No. 13 set forth the parties’ claims:
“The plaintiffs, Daniel Glynos and Nicholas Glynos, claim that they sustained injuries and damages due to the fault of the defendants, Nathan Jagoda, Steven Jagoda, 1.1. Ozar, David Feingold and Frank Morgan:
“In failing to install safety glass in the sliding glass doors separating the indoor and outdoor swimming pools of the Meadowlark Hill Apartment complex;
“In failing to place warning decals on or near the plate glass doors between the swimming pools to indicate the presence of plate glass;
“In failing to maintain the common area of the indoor pool complex in a safe condition.
“The plaintiff [sic] have the burden to' prove that their claims are moré probably true than not true.
“The defendants deny that they were at fault. The defendants claim that Daniel Glynos was at fault as follows:
“Failing to keep a proper lookout;
“In failing to open the door and colliding with it.
“The defendants have the burden to prove that their claims of fault on the part of the plaintiff are more probably true that [sic] not true.”
The Jury Issue
A 12-person jury was sworn. One juror did not return after the opening statement recess. The trial court informed the parties of the missing juror. They consented to proceed with a jury of 11 persons.
During the post-trial jury instruction conference, Meadowlark Hill objected to jury instruction No. 22, which states in part; “Your agreement upon a verdict may be by ten or more jurors in this case.” Meadowlark Hill argued that because the jury consisted of less than 12 jurors, a unanimous verdict was required. The trial court overruled the objection, stating:
“It was the intention of the Court when we had the unfortunate situation of the disappearing juror and the parties agreed to go with eleven that ten of the eleven would control. I recall vividly that I did not specifically state that, as is my custom. In any event, the verdict form has a place for them to recite whether it is by ten or eleven and the objection is overruled.”
Meadowlark Hill asserts that K.S.A. 1990 Supp. 60-248 provides that a verdict of a jury of less than 12 jurors must be unanimous unless the parties specifically stipulate to the contrary. Meadowlark Hill contends that it did stipulate to a jury of 11, but did not stipulate to allow a jury verdict of less than all of the jurors.
Plaintiffs argue that Meadowlark Hill impliedly stipulated to a less than unanimous verdict by stipulating to proceed with 11 jurors. Plaintiffs contend that both their counsel and the trial court understood the parties to have agreed that an agreement of 10 jurors would be sufficient to render a verdict. Plaintiffs invite us to adopt the following rule: When a juror leaves during trial, and the parties stipulate to a jury of less than 12 members, a party must immediately advise the court of his/her intention to insist on a unanimous verdict. We decline the invitation.
K.S.A. 1990 Supp. 60-248(a) states:
“Stipulation as to number. The partiés may stipulate that the jury shall consist of any number less than 12 or, subject to the provisions of subsection (g), that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.”
K.S.A. 1990 Supp 60-248(g) provides, in part:
“Verdict; number of jurors required; form; correction. Whenever the jury consists of 12 members, the agreement of 10 jurors shall be sufficient to render a verdict. In all other cases, subject to the stipulation of the parties as provided in subsection (a), the verdict shall be by agreement of all the jurors.”
In Schultz v. Kansas Gas & Electric Co., 7 Kan. App. 2d 500, 644 P.2d 484 (1982), a personal injury case was tried to a jury of 12 persons. The case was submitted to the jury, which deliberated for a short time before separating for the evening. The next morning, one of the jurors called and advised the trial court that she was ill and would be unable to attend. The trial judge stated that because 10 out of 12 could reach a verdict, he was going to allow the remaining 11 to deliberate. The defendant objected, stating that it did not agree to a jury of less than 12 and if it did agree to 11, agreement of all the jurors would be •necessary. The trial court overruled the objection. The 11-mem-ber jury returned a unanimous verdict. The defendant appealed. The Kansas Court of Appeals discussed K.S.A. 60-248, stating:
“The first sentence of the amendment to subsection (g) indicates that if the parties have not stipulated to decrease the number of jurors, the agreement of ten of the twelve will be sufficient for a lawful verdict. If the parties have agreed to a jury of less than twelve but have not agreed to reduce the number necessary for a verdict, as permitted by the last clause of sübsection (a), the verdict must be unanimous. The provision that the vote of ten jurors is sufficient for a verdict only applies when the jury includes twelve members. Likewise, unanimity is compelled only when the parties have stipulated to a jury of less than twelve,” 7 Kan. App. 2d at 502.
The case was reversed and remanded for a new trial because the defendant had not stipulated to a jury of less than 12. ■
The language of K.S.A. 1990 Supp. 60-248(a), coupled with the Schultz rationale, establishes the requirement of 2 separate stipulations as to a juror number of less than 12 for a civil'jury: first, a stipulation to proceed with less than 12 jurors; and'second, a stipulation that a verdict of a stated majority of the jurors shall be sufficient. When the parties consent to a jury of less than 12, the verdict must be unanimous unless the, parties stipulate to accept a verdict of a stated majority of less than all of the jurors.
In the case at bar, the journal entry states: “Thereupon, one juror, Michelle Fischer, did not return to jury service following a recess of the Court. The Court so informed the parties, and each party consented to proceed with a jury of eleven persons.” The journal entry makes no mention of a second stipulation that the verdict may be by less than all of the remaining 11 jurors. Furthermore, the trial court stated that it did not specifically state, at the time of the stipulation, that 10 of the 11 jurors would control. The record reflects that Meadowlark Hill did not expressly stipulate to a less than unanimous verdict as required by K.S.A. 1990 Supp. 60-248(g).
Plaintiffs also reason that Meadowlark Hill waived its right to a unanimous verdict by failing to request that the jury be sent out for further deliberations after it returned the 10-juror verdict. They rely on K.S.A. 1990 Supp. 60-248(g).
Meadowlark Hill counters that the trial court instructed, over its objection, that a verdict of 10 or more jurors would be sufficient. Therefore, K.S.A. 1990 Supp. 60-248(g), which provides in part, “If less than the required number of jurors agree, the jury must be sent out again,” has no application because, in accordance with the trial court’s instruction, the required number of jurors did agree. Meadowlark Hill suggests that it had no choice but to wait for the final verdict and then appeal. We agree. It would have been futile to request the jury be sent out again after returning a verdict by 10 of the 11 jurors. The trial court had already ruled and instructed that a verdict of 10 out of 11 would control.
Finally, plaintiffs argue that Meadowlark Hill waived its right to a unanimous verdict by submitting a verdict form to the trial court which allowed for a less than unanimous verdict. Meadowlark Hill answers this argument by pointing out that the proposed verdict form was submitted prior to trial. Meadowlark Hill had no reason to anticipate the disappearing juror. Further, it asserts that the objection to instruction No. 22 made its position clear.
The Meadowlark Hill proposed instructions were filed in the district court on August 27, 1990. The trial occurred on July 16-18, 1990. The proposed instructions were obviously not filed with the clerk when submitted to the trial court. The record does not reflect when they were submitted to the trial court. During oral argument, counsel for Meadowlark Hill stated that the requested instructions, including the verdict form, were prepared and submitted to the trial judge prior to trial. Plaintiffs do not state when the Meadowlark Hill proposed verdict form was submitted to the trial court. The Meadowlark Hill objection at the instruction conference was sufficient to prevent waiver of the right to a unanimous verdict.
K.S.A. 1990 Supp. 60-248 is not ambiguous. We hold that the statute requires a second stipulation to agree to a less than unanimous verdict when the jury consists of less than 12 jurors. The verdict, in the case at bar, is invalid.
Although we reverse and remand on the jury composition issue, we choose to address the additional issues, as they may again be presented to the trial court.
Closing Argument
In closing argument, plaintiffs’ counsel stated:
“They spent a lot of time on the building codes. That was an illusion. They tell you that because they met the building code that they were not at fault. They did what the building code required, so why should we find them at fault? But you heard Mr. Dressier tell you that the building code was the bare minimum, that was the least they had to do, and it doesn’t make it safe.
“And while this is not on the same magnitude, I will tell you that the Hyatt Regency met the building code.”
Based on this remark, the following colloquy occurred between counsel and the court:
“[Meadowlark Hill’s counsel]: Judge, there is no evidence of that. I ask it be stricken. There is no issue.
“[Plaintiffs’ counsel]: I think it is common knowledge it would not have settled up if it had not.
“[Meadowlark Hill’s counsel]: Judge, I ask that argument be stricken.
“THE COURT: Overruled.”
Meadowlark Hill argues that the Hyatt Regency comment was improper because it was based on facts not in evidence and designed to produce prejudice. We agree.
We observe that Model Rule of Professional Conduct 3.4 (1990 Kan. Ct. R. Annot. 262) provides, in part:
“A lawyer shall not:
“(e) in trial, allude to any matter that the. lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.”
“No rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence.” State v. Bradford, 219 Kan. 336, 340, 548 P.2d 812 (1976).
Counsel’s argument referring to the Hyatt Regency was improper. The remark referred to extraneous matters not in evidence.
The Hyatt Regency collapse was highly publicized and affected a great number of Kansas City area residents residing in the county where this case was tried. The trial court’s overruling of Meadowlark Hill’s objection endorsed the impropriety.
Compliance With Applicable Building Codes
Meadowlark Hill argues that plaintiffs alleged negligence in maintaining a dangerous condition by failing to install safety glass in contravention of federal, state, and city laws. Meadowlark Hill asserts error in the denial of its motion for summary judgment because: (1) The applicable laws were enacted after the complex was constructed; and (2) they contained no provisions for retroactive application. The trial court erred, Meadowlark Hill contends, by permitting Glynos to introduce evidence relating to the post-1968 building codes.
Plaintiffs counter by asserting that Meadowlark Hill mischaracterized their allegation of negligence. They assert that although their first amended petition alleges that Meadowlark Hill had violated federal, state, and local building codes, they did not present this theory at trial. Instead, as the jury instructions indicate, plaintiffs alleged that Meadowlark Hill was negligent by failing to maintain the common swimming pool area in a safe condition. Plaintiffs further assert that the building codes were properly admitted into evidence to show Meadowlark Hill’s knowledge and notice of the danger of plate glass doors. Plaintiffs also contend that Meadowlark Hill opened up the subject with its opening statement by asserting compliance with the building codes.
Plaintiffs’ response to Meadowlark Hill’s motion for summary judgment asserted that his claim is based on common-law negligence rather than negligence per se, i.e., violation of the building codes. In addition, they contended that compliance with the building codes is not a defense to common-law negligence and that the current building codes were admissible to show Meadowlark Hill’s knowledge of the danger of plate glass. We agree.
Instruction No. 13 stated plaintiffs claimed that Daniel’s injuries were due to the fault of Meadowlark Hill:
“In failing to install safety glass in the sliding glass doors separating the indoor and outdoor swimming pools of the Meadowlark Hill Apartment complex;
“In failing to place warning decals on or near the plate glass doors between the swimming pools to indicate the presence of plate glass;
“In failing to maintain the common area of the indoor pool complex in a safe condition.”
Instruction No. 18 instructed the jury on the law relating to landlord liability for defective premises:
“A landlord is liable for injuries to his tenants and their invitees that result from defects on parts of premises reserved for the common use of his tenants when the landlord knew of the defects, or by the exercise of ordinary care should have known of the defects, and had a reasonable opportunity to repair them before the injuries were sustained.”
Although no objection was made to instruction No. 18, we reason its use, in the case at bar, was misplaced. The instruction on defective premises contributed to a blending of premises liability and ordinary negligence theories.
Meadowlark Hill argues that the trial court erred by denying its motion for directed verdict because: (1) As a matter of law, it may not be found negligent; and (2) the sliding glass door complied with all applicable building codes. Meadowlark Hill asserts that Kansas appellate courts have not ruled on code compliance as a defense, but cites Sparks v. American Mutual Liberty Insurance Co., 287 So. 2d 654 (La. App. 1973), and Bernstein v. Reforzo, 37 Md. App. 724, 379 A.2d 181 (1977) (compliance with building codes precludes a finding of negligence).
Plaintiffs assert we have ruled that conformity with industry standards, or standards legislatively imposed, does not preclude a finding of negligence, where a reasonable person may have taken additional precautions under the circumstances. Folks v. Kansas Power & Light Co., 243 Kan. 57, 61-62, 755 P.2d 1319 (1988), and Jones v. Hittle Service, Inc., 219 Kan. 627, 631-32, 549 P.2d 1383 (1976). Additionally, plaintiffs cite cases frqm other jurisdictions which upheld verdicts finding defendants liable for injuries sustained when plaintiffs were injured by coqtafct with plate glass doors or panels. Jiffy Markets, Inc. v. Vogel, 340 F.2d 495 (8th Cir. 1965); Becker v. IRM Corp., 38 Cal. 3d 454, 213 Cal. Rptr. 213, 698 P.2d 116 (1985); and Wheeler v. Jones, 19 Utah 2d 392, 431 P.2d 985 (1967).
Folks and Jones control; thus, it is unnecessary to discuss the cases from other jurisdictions cited by the parties. We apply the rationale of Folks and Jones to building codes.
Folks involved a wrongful death and survival action brought by a surviving spouse and minor children. Folks was fatally injured while painting at a construction site when a ladder he was using came in contact with KP&L’s power line. Plaintiffs alleged KP&L had negligently designed, maintained, and installed the power lines. KP&L claimed it was not negligent because the power line exceeded the clearance requirements of a five-foot horizontal clearance developed by the Institute of Electrical and Electronic Engineers and published in The National Electric Safety Code (NESC). We held that compliance with industry standards is not an absolute defense to negligence, stating:
“While it may be evidence of due care, compliance with industry standards, or standards legislatively or administratively imposed, does not preclude a finding of negligence where a reasonable person would have taken additional precautions under the circumstances. Jones v. Hittle Service, Inc., 219 Kan. 627, 632, 549, P.2d 1383 (1976) (citing Garst v. General Motors Corporation, 207 Kan. 2, 484 P.2d 47 [1971]).” 243 Kan. at 61-62.
Folks further noted that the clearance standard did not apply to building sites and that the NESC set only a minimum safety standard.
Jones involved a legislatively imposed standard. Jones was a wrongful death and survival action resulting from a propane gas explosion that killed three persons. Propane is odorless; conse quently, an odorizing agent is added to make propane perceptible. The plaintiffs in Jones claimed the defendants were negligent in failing to sufficiently odorize the propane. Evidence was introduced regarding the standards for odorization of propane gas developed by the National Fire Protection Association (NFPA). The Kansas state fire marshal, charged by K.S.A. 31-207 (Corrick) with making rules and regulations for the storage, use, manufacture, and sale of petroleum products, adopted the NFPA standard in a regulation. The parties stipulated that the propane gas had been odorized to the level required by the Kansas regulation. Defendants argued that compliance with the regulation conclusively established they were not negligent and the propane gas was not defective. We rejected defendants’ argument, relying on Restatement (Second) of Torts § 288C (1963), which provided: “ ‘Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions.’ ” 219 Kan. at 631.
In the case at bar, plaintiffs presented Dressier, who testified as an expert regarding current industry safety standards, federal law, and local building codes. Each of these standards classified sliding glass doors as hazardous locations and required safety glass in all new and replacement installations. Dressier testified that the building code with which Meadowlark Hill had complied was a bare minimum standard. Hayes testified that he had walked into a similar sliding glass door next to the indoor pool. From Dressler’s testimony, the jury could have concluded that Meadowlark Hill had notice that compliance with the building codes was inadequate and that it should have taken additional precautions in the swimming pool area.
Meadowlark Hill asserts that in negligence cases the existence of a duty is a question of law for the court. Hackler v. U.S.D. No. 500, 245 Kan. 295, 777 P.2d 839 (1989); Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983). According to Meadowlark Hill, the trial court erred by denying its motions for summary judgment and for a directed verdict and by permitting plaintiffs to introduce evidence of building codes enacted after construction. Meadowlark Hill also asserts error in submitting the question of whether it had a duty to replace the plate glass in the swimming pool doors. , -
Plaintiffs assert that the trial court properly instructed the jury on the common-law duty of a landlord to maintain common areas in a safe condition. Instruction No. 13 instructed the jury that plaintiffs claimed that failing to install safety glass, or place a safety decal on the sliding glass door, was a breach of this duty. The jury was not instructed that violation of the building codes was negligence per se.
Plaintiffs’ position is correct. Instruction No. 17 instructed the jury that a landlord has a duty to exercise ordinary care to keep common areas in a safe condition. The trial court did not instruct the jury that Meadowlark Hill had a duty to replace the plate glass door with safety glass.
Instruction No. 18 was taken from PIK Civ. 2d 12.33. It instructed the jury concerning premises defects. Under the facts of this case, we approve of the use of instruction No. 17 (ordinary care); we disagree with the use of instruction No. 18 (premises defects). The blending of the theories of ordinary care and defective premises, under the facts as developed in this case, may have stimulated the building code evidentiary conflict.
Plaintiffs assert a claim for injuries resulting from Meadowlark Hill’s alleged negligence occurring in a common use area of the apartment complex. The duty of ordinary care owing from Meadowlark Hill to Daniel, transcends the building code issue. Conformity with the building code is not an absolute defense to a claim based on ordinary negligence.
While compliance may be evidence of due care, it does not preclude a finding of negligence where a reasonable person would have taken additional precautions under the circumstances.
At the time of construction in 1968, the complex met all applicable building codes. We agree with Meadowlark Hill that it had no legal duty to rebuild in order to comply with each update in the building code. We do not imply such an onerous economic requirement.
The question is, simply, did Meadowlark Hill exercise ordinary care to maintain a common area of the complex in a safe condition?
The Cross-Appeal — Punitive Damages
Plaintiffs filed a motion to assert a claim for punitive damages under K.S.A. 1990 Supp. 60-3703. In the pretrial order, the trial court addressed the motion as follows:
“Plaintiff has recently filed a motion to allow plaintiffs to assert a claim for punitive damages. The Court orders that the Court will rule at the close of plaintiffs’ case whether plaintiffs have made a submissible case of punitive damages. There will be no mention by the parties, counsel, or witnesses to the jury of any claim for punitive damages or any allegation of punitive conduct until such time as the Court has ruled.”
The trial court did not rule on plaintiffs’ punitive damages motion at the close of their case. Following the presentation of all of the evidence, Meadowlark Hill moved for a directed verdict on the punitive damages claim. Plaintiffs referenced the court’s statement in the pretrial order and suggested that the court was in a position to rule on the motion. They asserted that Meadowlark Hill was indifferent to the dangerous condition posed by the plate glass sliding glass door despite adequate notice. They relied on Meadowlark Hill’s (1) notice of the Hayes’ incident, (2) notice of the building code regarding safety glass, (3) knowledge that plate glass was more dangerous than safety glass, and (4) knowledge that children went back and forth through the doorway. The trial court found that there had not been “a proper threshold or evidentiary underpinning to authorize and justify the submission to the jury of the question of punitive damages.”
We view the trial court’s ruling as a denial of plaintiffs’ motion to assert a claim for punitive damages under K.S.A. 1990 Supp. 60-3703.
K.S.A. 1990 Supp. 60-3703 provides:
“No tort claim for punitive damages shall be included in a petition or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim pursuant to K.S.A. 60-209, and amendments thereto. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed on or before the date of the pretrial conference held in the matter.” (Emphasis added.)
The punitive damages issue, on remand, will be controlled by the posture of the case as it develops for retrial. We note that K.S.A. 1990 Supp. 60-3703 contemplates a ruling on a punitive damage claim motion on the basis of supporting and opposing affidavits to be filed on or before the pretrial conference.
Evidence of a Prior Plate Glass Accident
Plaintiffs argue that the trial court abused its discretion by excluding evidence that Meadowlark Hill had been sued in a prior lawsuit arising out of a similar accident at another Meadowlark Hill apartment complex. They contend the evidence was relevant to show knowledge of the hazardous condition posed by the plate glass door and as evidence of wanton conduct. Meadowlark Hill does not brief this issue.
The trial court, on remand, may or may not be presented with this exclusion issue. If plaintiffs seek to introduce evidence of a prior similar accident, the foundation and manner of presentation may be altered from the record now before us. The trial court will consider the circumstances then developed and rule at that time.
Reversed and remanded.
Abbott, J., not participating.
Terry L. BULLOCK, District Judge, assigned.
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The opinion of the court was delivered by
LOCKETT, J.:
This was an action brought by eight plaintiffs, five of whom were not residents of Kansas, to recover the purchase monies paid for units in an Oklahoma oil and gas well and to rescind certain agreements executed in Colorado. Plaintiffs claimed they were fraudulently induced to enter into the agreements by nonresident officers of the Kansas corporation. At the conclusion of the trial, the trial court instructed the jury on an additional theory of fraud not raised in the plaintiffs’ petition or at pretrial, i.e., fraudulent promise of future events. The jury found that the defendants had committed fraud. The trial court rescinded the contracts, granted money judgments for the purchase money, and awarded prejudgment and postjudgment interest. Defendants appeal, claiming: (1) The trial court did not have personal jurisdiction over nonresident corporate officers of a Kansas corporation; (2) there was insufficient evidence for the corporation to be held liable for the actions of its corporate officers; (3) the trial court erred in instructing the jury on fraudulent promise of future events; (4) the trial court erred in refusing to separate the theories of fraud in the verdict form to show which theory the jury applied to each defendant; and (5) the trial court erred in failing to grant the defendants’ motions for directed verdicts after the evidence had been submitted.
Appellants’ and appellees’ statements of facts consist of disjointed facts rather than a concise and complete statement of facts as required by Supreme Court Rule 6.02(d) (1990 Kan. Ct. R. Annot. 25) and Rule 6.03(c) (1990 Kan. Ct. R. Annot. 26). The facts we recite are sufficient to determine the issues present in the appeal.
The action by the eight plaintiffs arose after Douglas Stewart purchased one unit of the production interest in the Earl Trenton No. 1 oil and gas well, located in Grant County, Oklahoma for $5,700 from Heartland Oil & Gas, Inc., in June of 1988. It is necessary to set out the plaintiffs, the defendants, the relationship between the parties, and how Stewart’s original purchase resulted in this action.
Plaintiffs Douglas Stewart, Gary Anderson, and Jim Thomas worked for the same company. Donna Stewart and Douglas Stewart are mother and son. Gary and Barbara Anderson are husband and wife. Barbara Anderson and Mike Tetley are brother and sister. Mike Tetley and Pam Tetley are husband and wife. Jim Thomas was Jeannie Larkins’ boyfriend. Douglas Stewart, Jim Thomas, and Jeannie Larkins were residents of Colorado at the time of their purchases. Donna Stewart and the Andersons were residents of Kansas. The Tetleys were residents of New Jersey.
Defendant Heartland Oil and Gas, Inc., is a Kansas corporation with Gypsum, Saline County, Kansas, designated as the location of its principal office and registered agent. Defendant George Jones was Chairman of the Board of Directors, Chief Executive Officer, and Vice-President of Marketing for Heartland Oil and Gas, Inc. Jones owns, controls, or has an interest in 57V2% of the corporation’s stock, is a resident of Colorado, and lists his home in Colorado as an out-of-state office of the Kansas corporation. Defendant Robert Young is Vice-President of Marketing for Heartland Oil and Gas, Inc., and owns or controls approximately 7V2% of the corporate stock. Young is also a resident of Colorado, and lists his home in Colorado as an out-of-state office of the Kansas corporation.
After Douglas Stewart purchased his original unit from the corporation in June of 1988, he sold V2 of the unit to the Andersons for $2,850. The original purchase by Stewart and the sale to the Andersons started a chain of purchases of the production interests in the Earl Trenton No. 1 well when Douglas Stewart and the Andersons were informed that their original investment would reap them a fortune. By this time, because the well had been completed, was being tested, and was producing, the purchase price had risen to $7,500 per V2 unit. The plaintiffs were informed that in the near future production interest in the well would increase to $10,000 per V2 unit. Based on information provided by Young, the Andersons purchased an additional V2 unit; Donna Stewart purchased V2 unit; Douglas Stewart pur chased V2 unit; the Tetleys purchased V2 unit; and Jim Thomas and Jeannie Larkins purchased IV2 units in the oil well together. Jim Thomas’ name, however, did not appear on the agreements.
The .trial transcript in this case is 800 pages. The appellants and appellees failed to adequately identify which statements by Young were misrepresentations and how these statements differed from the facts existing at the time of the statements. Neither the appellants’ nor the appellees’ brief properly identifies the testimony relating to the alleged misrepresentations made by Young to each of the various plaintiffs. The following summarizes the testimony of the plaintiffs as to statements made by Young.
Young informed the plaintiffs the oil was there and they were buying oil that had already been “hit.” Young advised the plaintiffs that the pipe was set, there was an 18-foot Misc.er zone, and oil was flowing and the well was producing in excess of 1,000 barrels a day. The oil well was going to produce 800-1,000 barrels of oil per day for 5-7 years and contained over a million cubic feet of natural gas. The risk for those who invested was over. Young supplied figures from initial production maps of other wells in the area which indicated that up to 1,572 barrels of oil were being produced by other wells in the area each day. Young did not inform the plaintiffs there were limitations to production of oil from wells in Oklahoma. (In fact, there is a 250 barrel per day per well limit.) Young stated the well was worth millions of dollars. Young informed the plaintiffs there was no risk, absolutely nothing could go wrong, their initial investment would be returned within 60 days, their fortune was reconfirmed, and they could add a million dollars to their financiál statements. Thomas testified Young ran the figures on his calculator at the Colorado meeting three of the plaintiffs attended. Before the well was plugged, its highest production was 42 barrels of oil per day.
Defendant Young testified he did not solicit any of the plaintiffs as investors in the well. At a meeting in Denver he told Douglas Stewart, Jim Thomas, and Jeannie Larkins that there was less risk now than at the beginning of the well project. Young gave Douglas Stewart, Thomas, and Larkins a prospectus at the meeting in Denver, and they received the well log from Jones at the meeting on the 9th of August. Young denied telling the plaintiffs the well was an 800-1,000 barrel producer or that there was an 18-foot Misc.er zone. Young testified oil actually spewed over the top of the derrick during the drill stem test on August 4, 1988. Young denied making the statements the Tetleys and Thomas alleged or telling Donna Stewart the well was in production or the number of barrels of oil the well was producing. Young testified that, when he talked with each of the plaintiffs, they understood he was a salesperson who represented Heartland Oil. Young testified the plaintiffs had contacted him about buying into the well. Young stated he did not initiate contact with any of the plaintiffs or solicit the plaintiffs to purchase units in the Earl Trenton No. 1.
The various purchases were made as follows: After a sales pitch by Young in a restaurant in Denver, Colorado, on August 9, 1988, Douglas Stewart, Larkins, and Thomas met Young and Jones and purchased interests in the well. There is conflicting testimony as to whether there were two or three meetings at the restaurant. Young attended all of the meetings. Jones, who attended only one meeting, never made a statement to the plaintiffs. Jones’ purpose in being at the meeting was to bring the well logs for Douglas Stewart, Larkins, and Thomas to review. There is conflicting testimony whether he actually brought the well logs.
Donna Stewart’s V2 unit was purchased by her through her son, Douglas Stewart. Donna Stewart wrote a check to Heartland Oil Inc., for her V2 unit and mailed the check from Kansas to her son in Colorado. Douglas gave his mother’s check to Young in Colorado. Donna Stewart’s only contact with Young was by telephone from Kansas to Young in Colorado. Donna Stewart received all her information about the Earl Trenton No. 1 from her son, Douglas Stewart.
The Andersons, in Kansas, telephoned Young in Colorado to inquire about the V2 unit they had previously purchased from Douglas Stewart. The parties discussed the advantages of purchasing additional units in the well. The Andersons mailed checks to Young to purchase a second V2 unit.
The Tetleys were informed of the possibility of investing in the Earl Trenton No. 1 by the Andersons. Pam Tetley telephoned from New Jersey to Young in Colorado. Pam Tetley sent a check from New Jersey to Young in Colorado. Young mailed a transfer agreement and a lease agreement to the Tetleys in New Jersey. Mike Tetley never had contact with Young. His information about the Earl Trenton No. 1 came from the Andersons and his wife.
Plaintiffs claim that, in addition to giving false information about the well, Young deceived them by failing to inform them they were purchasing the non-operator interests from him, not the corporation. Although the “Oil and Gas Non-Operator Production Interest Transfer Agreements” and “Oil and Gas Lease Operation Agreements” signed by the individual plaintiffs were entitled “Heartland Oil & Gas“, the units purchased by plaintiffs were owned by Young, not Heartland. Young signed the transfer agreements as the individual who owned the units.
After the plaintiffs executed the transfer agreements with Young, they were required to sign oil and gas lease operation agreements with the corporation. This added to the plaintiffs’ confusion. The operation agreements stated in part:
“Heartland Oil & Gas Inc.
909 Maple — P.O.Box 346
Gypsum, Ks. 67448
(913) 536-4816
“OIL AND GAS
LEASE OPERATION AGREEMENT
“For consideration hereby acknowledged the parties hereto being Heartland Oil & Gas Inc., and/or its assigns, hereinafter referred to as Heartland or Operator and Gary Anderson referred to as Non-Operator, do hereby agree as follows:
“1. INTEREST SOLD: Pursuant to the terms hereof Heartland does hereby agree to sell to Non-Operator One units, subject to a Vs royalty interest, and a Vs overriding interest, subject to a fifty percent revisionary [sic] interest after payout, in and to oil and gas leases and leasehold estate thereby established covering the following described premises:
“EARL TRENTON #1 SW SW NE QUARTER OF SECTION 8-26N-7W GRANT COUNTY, OKLAHOMA — 40 ACRES”
The lease operation agreement with Heartland Oil & Gas, Inc. was signed
“Heartland Oil & Gas, Inc.
By Robert Young, V.P.
signature of ofticer/title”
Whether the individual plaintiffs knew they were purchasing units personally owned by Young rather than by Heartland Oil was a disputed fact. Although the language of the transfer agree ments indicated a sale of units by Young rather than Heartland Oil and Gas, Inc., the jury determined Young’s deception caused the plaintiffs to believe they were purchasing their non-operator interests from Heartland.
Near the end of the trial, defendants moved for directed verdicts against all plaintiffs. Their motion for directed verdict against plaintiff Thomas was granted because he had not signed the agreements.
After the jury found each of the defendants had committed fraud, the trial judge determined that the Andersons, the Tetleys, and Donna Stewart had not been fraudulently induced to enter into the agreements by Jones’ silence at the Denver meetings and granted Jones’ motion for directed verdict as to those plaintiffs. Based on the finding by the jury, the trial court rescinded both the transfer and operation agreements and granted money judgments equal to the purchase price of each V2 unit purchased, plus prejudgment and postjudgment interest. All three defendants were held jointly and severally liable for the money judgments of Douglas Stewart and Larkins. Young and Heartland Oil and Gas, Inc., were held jointly and severally liable for the remaining money judgments. The defendants appealed.
PERSONAL JURISDICTION OVER THE DEFENDANTS JONES AND YOUNG
Defendants Jones and Young contend, except for the claims of the plaintiffs who were residents of Kansas, the trial court could not acquire personal jurisdiction over them under K.S.A.1990 Supp. 60-308, the Kansas long arm statute. At the time the fraudulent acts occurred three of the plaintiffs were Kansas residents, two plaintiffs were New Jersey residents, and three plaintiffs were Colorado residents. Defendants Young and Jones were Colorado residents, and defendant Heartland Oil and Gas, Inc., was a Kansas corporation.
Prior to trial, Jones moved to dismiss the action against him, claiming the trial court lacked in personam jurisdiction over him under 60-308(b). The trial court found there was personal jurisdiction of Jones under 60-308(b)(6), stating:
“Certainly ‘acting within this state’ taken in context does not mean the tortious act or specific business transaction must take place in Kansas. It means while an individual is serving in the capacity of an officer, manager, etc. of a Kansas corporation there is a sufficient nexus to warrant an assertion of jurisdiction over that individual as well as the corporation so long as jurisdiction is grounded upon the individual acting as a representative of the corporation.”
Additionally, without explanation, the trial court found that basic notions of due process were not offended by its assertion of in personam jurisdiction over Jones. The trial court’s reference to “tortious act or specific business transaction” appears to be referencing sections (b)(1) and (b)(2) of the long arm statute.
On appeal, both defendants contend the trial court erred in holding it had personal jurisdiction over nonresident corporate officers under 60-308(b)(6). Defendants rely on Schlatter v. Mo-Comm Futures, Ltd., 233 Kan. 324, 662 P.2d 553 (1983), where we determined two of the nonresident directors of a Missouri corporation were not subject to in personam jurisdiction under 60-308(b)(6). In Schlatter all of the Missouri corporate directors were nonresidents of Kansas. Two of the defendants were nominal directors of the Missouri corporation, who were not involved in directing the Missouri corporation’s business or did not participate in the fraudulent sale of limited partnership shares in Kansas. We held that the phrase “acting within this state,” (60-308[b][6]) requires something more than a failure to act on the part of a nonresident director of a Missouri corporation. We noted if the legislature had intended that mere membership on the board of directors (of an out of state corporation) was sufficient to subject a corporate director to Kansas jurisdiction for tortious acts of the corporation, it could easily have said so.
K.S.A. 1990 Supp. 60-308(b) states, in part:
“(b) Submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
“(1) Transaction of any business within this state;
“(2) commission of a tortious act within this state;
“(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state;
“(6) acting within this state as director, manager, trustee or other officer of any corporation organized under the laws of or having a place of business within this state or acting as executor or administrator of any estate within this state.”
The Kansas long arm statute, K.S.A. 1990 Supp. 60-308, is liberally construed to assert personal jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the Fourteenth Amendment to the United States Constitution. Ling v. Jan's Liquors, 237 Kan. 629, 633, 703 P.2d 731 (1985). When the existence of personal jurisdiction is controverted, plaintiff has the minimal burden of establishing a prima facie threshold showing that constitutional and statutory requirements for the assumption of personal jurisdiction are met. Ammon v. Kaplow, 468 F. Supp. 1304, 1309 (D. Kan. 1979).
“The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. [Citation omitted. ] . . . Due process requires that the defendant be given adequate notice cf the suit, [citation omitted], and be subject to the personal jurisdiction of the court [citation omitted] ....
“. . . [A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State. [Citation omitted.] The concept of minimum contacts . . . protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.
“Thus, the Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ [Citation omitted.] Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation ....
“. . . ‘[F]oreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.
“This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. [Citations omitted.] The Due Process Clause, by ensuring the ‘orderly administration of the laws,’ [citation omitted], gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-97, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980).
The rights and obligations attached to membership in a foreign corporation, as well as in any other corporation, are contractual in nature, yet the act of becoming a stockholder or member of such a corporation is regarded as something more than a contract, involving the relationship between the stockholder or member and the corporation, which must be governed by the law of the state granting the incorporation. Therefore, residents of one state, by becoming stockholders of a corporation incorporated under the laws of another state, submit themselves to that extent to the jurisdiction and laws of the latter state. See 36 Am. Jur. 2d, Foreign Corporations § 431 and cases cited therein.
“In order to subject a defendant to a judgment in personam if he be not present within the territory of the forum state, he must have the minimum contacts enumerated in the statute, and whether due process is satisfied depends upon the quality and nature of the activities of the defendant, which must be determined on a case by case basis.” White v. Goldthwaite, 204 Kan. 83, Syl. ¶ 2, 460 P.2d 578 (1969).
“Three basic factors must coincide if jurisdiction is to be entertained over a nonresident on the basis of transaction of business within the state. These are (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.” White v. Goldthwaite, 204 Kan. 83, Syl. ¶ 3.
Doing business in a state supplies the minimum contact required for a nonresident to be subject to personal jurisdiction under our long arm statute. “ ‘Business’ is transacted within the state when an individual is within or enters this state in person or by agent and, through dealing with another within the state, effectuates or attempts to effectuate a purpose to improve his economic conditions and satisfy his desires.” Woodring v. Hall, 200 Kan. 597, 607, 438 P.2d 135 (1968). The transaction of busi ness exists when the nonresident purposefully does some act or consummates some transaction in the forum state. White v. Goldthwaite, 204 Kan. at 88.
“A private corporation is an association of persons to whom the state has offered a franchise to become an artificial, juridical person, with a name of its own, under which they can act and contract, and sue and be sued.” Mackay v. New York, H.H. & H. R. Co., 82 Conn. 73, 81, 72 A. 583 (1909). Every corporation created under the Kansas statutes can sue or be sued “in all courts and participate, as a party or otherwise, in any judicial, administrative, arbitrative or other proceeding, in its corporate name.” K.S.A. 17-6102(2). The business and affairs of every Kansas corporation are to be managed “by or under the direction of the board of directors.” K.S.A. 17-6301(a).
K.S.A. 1990 Supp. 60-308(b) reflects a conscientious state policy to assert jurisdiction over nonresident defendants to the extent permitted by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Membership by a nonresident upon the board of directors of a corporation organized under the laws of or having a place of business within Kansas subjects such a director to in personam jurisdiction in Kansas under 60-308(b)(6). Although the defendants Young and Jones were Colorado residents, they were corporate directors and officers of a Kansas corporation. Jurisdiction over individual officers, directors and employees of a domestic corporation, for claims that may result in personal liability, is predicated merely upon jurisdiction over the corporation itself.
Jones contends that, if the trial court had personal jurisdiction over him, he nevertheless is protected by the fiduciary shield doctrine. Jones quotes Wilshire Oil Company of Texas v. Riffe, 409 F.2d 1277, 1281 n. 8 (D. Kan. 1969):
“It has been held that while a foreign corporation is amenable to service when it transacts business through agents operating in the forum state, unless the agents transact business on their own account and not on behalf of the corporation, the agents are not engaged in business so as to sustain an application of the long arm statute to them as individuals.”
We disagree with Jones’ analysis. The fiduciary shield doctrine is not applicable to a domestic corporation or its agents conducting corporate business in or out of the state of incorporation.
WAS THERE SUFFICIENT EVIDENCE, AS A MATTER OF LAW, TO HOLD THE CORPORATION LIABLE FOR THE ACTIONS OF ITS AGENTS?
Heartland Oil asserts for it to be responsible for the the actions of Jones or Young, its responsibility must be based on a recognized theory of agency law holding the principal liable. We agree with that statement.
“Generally, a corporation is bound by the acts of its duly authorized officers or agents acting within the scope of their authority.” Executive Financial Services, Inc. v. Loyd, 238 Kan. 663, Syl. ¶ 2, 715 P.2d 376 (1986). A corporation is also liable for the torts of its agents when committed within the scope of its agents’ authority and course of employment even though it did not authorize or ratify the tortious acts. Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, 666 P.2d 711 (1983).
“When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.” Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988).
Here, there was sufficient evidence of acts of fraud by the officers or agents of the corporation to support the verdict against Heartland.
DID THE TRIAL COURT ABUSE ITS DISCRETION BY INCLUDING A CAUSE OF ACTION FOR FRAUDULENT PROMISE OF FUTURE EVENTS?
Defendants next contend the trial court (1) abused its discretion by amending the petition to include a cause of action for fraudulent promise of future events and (2) erred by instructing the jury on that issue. The tort of fraudulent promise of future events is defined as a promise made which the promisor had no intent of performing when made, made with the intent to deceive and to induce the promisee to act upon said promise, reasonable reliance on the promise by the promisee, and ultimate failure to perform by the promisor. PIK Civ. 2d 14.41.
K.S.A. 60-215(b) states:
“Amendments to conform, to the evidence. When issues not raised by the pleadings are tried by expres.s or implied consent of the parties,' they shall be treated in all respects as if they had been raised in the pleadings. Such Amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be. amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting pArty to meet such evidence.”
The trial judge did not state he was amending the petition, but said he would instruct the jury on fraudulent promise of. future events.
A trial judge is given broad discretionary power to amend the pleadings, and the exercise of such discretion will not. constitute reversible error unless it affirmatively appears that the amendment allowed or denied is so material it affects the substantial rights of the adverse party. Ballhorst v. Haner-Foreman-Cale, Inc., 207 Kan. 89, 92, 484 P.2d 38 (1971). In Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P.2d 139 (1966), the executrix of an estate brought an action claiming money in a joint tenancy bank account in the names of the decedent and defendant was an asset of the decedent’s estate. During the trial, the trial judge injected equitable issues. on, his own motion without a request. by the executrix to amend her petition pursuant to K.S.A. 60-215(b). We noted that the trial judge had, abused his discretion, by injecting equitable issues into the case which were completely outside of the pleadings and the evidence. 197 Kan. at 424-;25.
“It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not deihand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where .they fairly instruct the jury .on the law governing the case, error in an isolated instruction may be disregarded as harmless. If tbe instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.” Trout v. Koss Constr. Co., 240 Kan. 86, 88-89, 727 P.2d 450 (1986).
Defendants do not identify the prejudice to them that directly resulted from the giving of the instruction on fraudulent promise of future events. Apparently, their claim is that the case was not tried on that theory and that it was prejudicial to them to allow the jury the opportunity to consider an additional theory of fraud even though fraud was alleged in the plaintiffs’ petition and the pretrial order. We disagree.
We have read the instructions, the instructions are substantially correct, and there is evidence to support a finding the defendant made a fraudulent promise of a future event. The plaintiffs’ action is based on fraud, and the additional issue of fraudulent promise of future events is so similar to the fraud claim that no surprise occurred.
DID THE TRIAL COURT ERR BY NOT ITEMIZING THE DIFFERENT THEORIES OF FRAUD ON THE VERDICT FORM TO SHOW WHICH THEORY WAS APPLICABLE TO EACH DEFENDANT?
Defendants requested the trial judge to submit special questions to the jury in its verdict form. Defendants contend the trial court érred by denying defendants’ request to amend the verdict form so that the jurors were required to make a separate finding of which theory of fraud applied to each defendant. Defendants argue that lumping the different fraud theories into one finding on the verdict form deny them and the appellate courts the ability to determine which theory of fraud was applied to a particular defendánt by the jury. Defendants also argue that not itemizing the different theories of fraud on the verdict form essentially instructed the jury a defendant could be found liable on any theory. •
A judge may require the jury to make special written findings as to each issue of fact... K.S.A. 60-249. “The decision to submit special interrogatories to the jury rests within the sound discretion of the trial judge and will not be disturbed on appeal absent the showing of abuse of discretion.” Schaeffer v. Kansas Dept. of Transportation, 227 Kan. 509, 520, 608 P.2d 1308 (1980). See Hoffman v. Haug, 242 Kan. 867, 873, 752 P. 2d 124 (1988).
Submission of a special verdict form may often assist the trial judge in the burden of submitting the law of the case by com plicated instructions. Whether to submit a special verdict form or instruct the jury on the law and how it applies to each count against each defendant is within the sound discretion of the trial judge. We have reviewed the verdict form and the instructions submitted to the jury, and we find the trial judge properly instructed the jury as to the law and to the application of each theory of fraud against a particular defendant. The trial judge did not abuse his discretion in refusing to submit a special verdict form to the jury.
DID THE TRIAL COURT ERR BY NOT GRANTING THE DEFENDANTS’ MOTION FOR A DIRECTED VERDICT AS TO EACH OF THE PLAINTIFFS’ CLAIMS?
Defendants’ last contention is the trial court erred by not granting their motion for directed verdict as to all of plaintiffs’ claims. Defendants assert (1) the representations the plaintiffs claimed were fraudulent were not of current fact and (2) there was insufficient evidence of reliance to support a finding of fraud.
“When ruling on a motion for directed verdict, both the trial court and the appellate court are required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where reasonable minds could differ on the evidence, the motion must be denied and the case submitted to the jury. ” Folks v. Kansas Power & Light Co., 243 Kan. 57, 60, 755 P.2d 1319 (1988).
The trial judge granted the motion as to certain plaintiffs and claims, but not all of the claims.
It is not necessary that we repeat all of the facts. After considering all facts and inferences reasonably to be drawn from the evidence in favor of the plaintiffs, we find that the trial court did not err in denying the defendants’ motions for directed verdict.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Brenda Kay Dunn appeals her convictions by a jury of aggravated arson (K.S.A. 21-3719), conspiracy to commit arson (K.S.A. 21-3302, K.S.A. 21-3718), and criminal solicitation (K.S.A. 21-3303). Dunn claims: (1) There was insufficient evidence for a rational factfinder to conclude she was guilty beyond a reasonable doubt; (2) the trial judge improperly instructed the jury on reasonable doubt; (3) the trial court erred in overruling her motion in limine and admitting evidence of her prior crimes; (4) the prosecutor’s prejudicial statements during closing argument entitled her to a new trial; and (5) the trial judge’s admission of evidence of her prior crimes placed her in double jeopardy.
At approximately 3:30 a.m. on November 29, 1988, firefighters and police officers responded to a fire call at 110 West Republic in Salina. The house was rented and occupied by John Morton. Morton, Michelle Massaro (now Fasse), Robert Loop, and Allen Unselt were in the residence when a smoke grenade was thrown through the front window of the house, causing a fire. The remaining facts are disputed and are conveyed by outlining the trial testimony of several principal actors.
Robert Loop had noted that James Blair and another man had been around Morton’s house approximately two hours prior to the incident. John Morton was suspicious that Blair, the State’s main witness, was responsible for the fire.
Blair, who had been granted immunity by the State, implicated Brenda Dunn (now Cottam) as the person responsible for the fire. Blair testified that he and Dunn were involved in a drug operation. Dunn supplied Blair with drugs and Blair, in turn, supplied Morton, who sold the drugs on the street. Morton owed Blair money; consequently, Blair owed Dunn money. After discussing with Blair how to obtain the money from Morton, Dunn left town for four days and returned with a man named Scott. The three discussed ways to smoke Morton out of the house and kidnap him. Blair testified Mark Ryan delivered some smoke grenade canisters to Dunn. Ryan, who also received immunity, testified he had purchased the smoke grenades for Dunn at her request. Blair said Dunn told him that after Scott threw the grenade into the house she picked Scott up and they left the scene.
Dunn requested Blair to help her get rid of the remaining smoke grenades. At the time of the request, Blair was working as an informant for the Salina Police Department. He called and informed the police of Dunn’s request. The police instructed Blair to try to save the evidence. Dunn and Blair took the grenades to Milford Lake, where Blair tossed them into the lake. The following day Blair returned to the lake, retrieved the grenades, and turned the grenades over to the police. During the trial Blair and Ryan implied that' Dunn was a top drug dealer who brought in outside help to strong-arm Morton for money owed.
In contrast to Blair’s testimony, Dunn testified that she and Missy Hafiier drove to Osawatomie on the night of November 28, 1988, to check up on Dunn’s husband, who was working there at the time. Dunn stated they did not return to Salina until 3:45 or 4:00 a.m. Hafiier produced a daily journal which recorded the trip. Hafiier estimated they returned to Salina around 3:30 or 3:45 a.m.
Dunn denied being at the 110 West Republic address that night, denied talking to Blair about the incident, and denied any involvement with the smoke grenades. Although Dunn denied delivering drugs, she admitted that she previously had been convicted of drug-related offenses. Dunn was convicted on all counts and sentenced to 10 years to life for aggravated arson, 1 to 5 years for conspiracy to commit arson, and 1 to 5 years for criminal solicitation.
Dunn first contends the testimony given by Blair and Ryan was inconsistent, uncorroborated, contradictory, and patently unbelievable. The State argues that, although the testimony of Blair and Ryan was inconsistent, it is for the jury to decide whether the State’s witnesses are credible.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
A verdict of guilty in a criminal case will not be disturbed on appeal if there is substantial evidence even though the evidence is entirely circumstantial. Dunn asserts that Blair changed his story several times and notes that the police department sought no independent substantiation of Blair’s story. Likewise, Dunn claims Ryan was not totally forthcoming in relating his account of the purchase of the smoke grenades for her and, again, that the police did not seek independent corroboration of his account. Blair testified Dunn admitted involvement. Dunn testified she did not. Ryan testified Dunn asked him to obtain some smoke grenades for her. Dunn testified she did not. It is the jury’s prerogative to determine which testimony it will believe and which it will discard.
When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988). The jury was well aware that Blair and Ryan had been granted immunity for their testimony. Even so, the jury, by its verdict, believed their account of the events. It is clear a rational factfinder could have believed Blair and Ryan and not believed Hafner and Dunn and found Dunn guilty beyond a reasonable doubt.
Dunn next argues the jury was not properly instructed concerning the presumption of innocence, burden of proof, and reasonable doubt standard. She asserts the judge’s failure to properly instruct the jury on the presumption of innocence was reversible error. The State argues the instruction given properly states the law and notes Dunn failed to object to the instruction; therefore, she is raising the issue for the first time on appeal.
A party may not assign as error the giving or failure to give an instruction unless the party timely objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous. State v. Moore, 230 Kan. 495, Syl. ¶ 2, 639 P.2d 458 (1982). The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).
PIK Crim. 2d 52.02 states:
“The State has the burden of proving the defendant is guilty. The defendant is not required to prove he is not guilty. You must assume the defendant is not guilty unless the evidence convinces you of the defendant’s guilt.
“Your determination should be made in accordance with these instructions, and this is the test you should apply: If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty. If you have reasonable doubt as to any of the claims made by the State, you should find the defendant not guilty.”
The corresponding “Notes on Use” section provides:
“This instruction must be given in each criminal case and should follow the element instruction for the crime charged.”
The trial judge instructed the jury:
“The law places the burden upon the State to prove the defendant is guilty beyond a reasonable doubt. The law does not require the defendant to prove she is not guilty. Accordingly, you must assume that the defendant is not guilty unless you are convinced from all of the evidence in the case that the defendant is guilty beyond a reasonable doubt.”
Dunn claims that the trial court’s failure to give the complete PIK Crim. 2d 52.02 instruction is clearly erroneous as a matter of law because the trial judge failed to define reasonable doubt in the instruction.
The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed. State v. Pioletti, 246 Kan. 49, 58-59, 785 P.2d 963 (1990).
As in the present case, Pioletti concerned the trial court’s modification of PIK Crim. 2d 52.02. The instruction used in Pioletti was deemed to be “quite close to PIK Crim 2d 52.02” and thus did not constitute reversible error. 246 Kan. at 58.
Unlike Pioletti, the instruction given in this case modifies the first paragraph of PIK Crim. 2d 52.02 and eliminates the second paragraph. The instruction acknowledges that the State has the burden of proof, states that the defendant must be proved guilty beyond a reasonable doubt, and instructs the jury to assume the defendant is not guilty unless it is convinced she is guilty beyond a reasonable doubt.
The instruction given by the trial judge on reasonable doubt is a condensed version of PIK Crim. 2d 52.02. Although the instruction given failed to define reasonable doubt, the instruction is neither erroneous nor an incorrect statement of the law. Reasonable doubt does not need to be defined because the words themselves describe the meaning. See State v. Burton, 235 Kan. 472, 483, 681 P.2d 646 (1984).
Dunn next argues the court improperly admitted evidence of her prior crimes regardless of whether it admitted the evidence under K.S.A. 60-455 or independent of the statute. The State asserts the evidence was properly admitted independent of K.S.A. 60-455.
Prior to trial, Dunn filed a motion in limine requesting the trial court to exclude any evidence of her prior crimes under K.S.A. 60-455. Specifically, Dunn opposed the admission of any evidence of her prior drug activity with Morton, Rlair, and Ryan. The State argued the evidence should be admitted to show the relationship and course of conduct between Dunn and the other parties, and not evidence admissible under K.S.A. 60-455. The trial court found that the evidence would be admitted as part of the res gestae and K.S.A. 60-455 was not applicable.
The admission of evidence of prior crimes to establish a relationship between parties is appropriate. When evidence of prior crimes is admitted for that purpose, the admission is independent of K.S.A. 60-455. In State v. Bedford, 242 Kan. 658, 665, 750 P.2d 1013 (1988), we noted that evidence of “prior drug dealings between Redford and Donna and Redford and Gestl established the relationship between these parties.”
In Redford, the defendant kidnapped, raped, sodomized, and otherwise brutalized a former girlfriend over a 10-day period because he believed she had stolen drugs and money from him. 242 Kan. at 659. On appeal, Redford claimed the trial court erred in failing to give a limiting instruction to the jury concerning evidence of his prior drug crimes committed with the victim and others. 242 Kan. at 665. In addressing Redford’s assertion that he was entitled to a limiting instruction under K.S.A. 60-455, we said: “The evidence of Redford’s drug dealings had a logical connection to the case in explaining why events happened .... The evidence is thus res gestae and no limiting instruction is necessary.” 242 Kan. at 666.
Similarly, in the present case, Dunn’s relationship with Morton, Blair, and Ryan could best be shown by evidence of the drug dealings among the principals. The evidence of the drug dealings and the arson were so inextricably connected it would be difficult to separate the two; thus, it was proper for the trial judge to admit the evidence.
Dunn argues that res gestae does not apply because the prior drug dealings were only tangentially related to the smoke bombing. Further, Dunn argues the drug activity referred to only concerned incidents occurring after the smoke bombing. The law, however, allows the admission of evidence as part of the res gestae for acts made before, during, or after the principal event. State v. Kee, 238 Kan. 342, Syl. ¶ 2, 711 P.2d 746 (1985). Dunn’s argument is without merit.
Dunn argues even if the court properly allowed some testimony concerning the drug relationship among the principals, it allowed far too much evidence in. Specifically, she asserts the court initially stated only Morton could be questioned about the drug relationship, but evidence from Blair and Ryan was also allowed by the court.
Dunn misstates the court’s ruling. In its discussion with the State, during the motion in limine, the court asked if it was possible to have Blair and Ryan testify without bringing in the drug conviction. When the State said it would be very difficult to do, the court did not press the issue. After listening to Dunn’s argument, the court reasserted the ruling that all the testimony would be admissible independent of K.S.A. 60-455 to show relationships and the underlying circumstances. The trial court did not abuse its discretion.
Dunn next argues a statement by the prosecutor in closing argument was so prejudicial to her case that it requires reversal by this court.
The prosecutor, in closing argument, stated:
“She masterminded [the arson] and carried it out through the help of others. Now, you saw her cry on the stand. Don’t have sympathy for this defendant. Those tears belong to the families of these people sitting in prison or to people whose children are hooked on drugs now.”
Dunn immediately objected. The trial court stated: “Sustained. The jury should disregard the last statement made by the State.” The State argues the statements of the prosecutor do not rise to the level of reversible error.
Improper remarks made by the prosecuting attorney in closing summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable. State v. Pursley, 238 Kan. 253, 265, 710 P.2d 1231 (1985). In deciding whether prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood the error changed the result of the trial. State v. Chism, 243 Kan. 484, 493, 759 P.2d 105 (1988). Although ill-advised, the State’s remarks concerning the defendant seem highly unlikely to have changed the outcome of the trial.
Dunn’s final claim is that her trial on arson subjected her to double jeopardy because she had already been convicted of drug charges. The State argues Dunn was not placed in double jeopardy because she was prosecuted on two separate charges based on two separate acts in two separate proceedings.
A defendant shall not be prosecuted a second time for the same offense rafter acquittal or after conviction, or receive multiple punishments for the same offense. State v. Freeman, 236 Kan. 274, 280-82, 689 P.2d 885 (1984). These rights are guaranteed by the 5th Amendment to the United States Constitution, § 10 of the Kansas Constitution Bill of Rights, and K.S.A. 21-3108.
The constitutional prohibition against double jeopardy is directed to the identity of the offense and the act. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied when determining whether these are two offenses or only a single offense is whether each statutory provision requires proof of an element that the other does not. Where one statute requires proof of an element that the other does not, the crimes are not the same, even though proof of the separate crimes may substantially overlap. State v. Dunn, 243 Kan. 414, 432, 758 P.2d 718 (1988).
There is no claim by Dunn that the drug convictions and the arson conviction resulted from the same act or transaction. For double jeopardy to attach, such would be necessary. The record is devoid of any such claim. “A party must designate an adequate record on appeal to substantiate contentions made to the appellate court. Without such a record, claims of alleged error must fail. Assertions in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal.” Eisenhut v. Steadman, 13 Kan. App. 2d 220, 223, 767 P.2d 293 (1989).
Affirmed.
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The opinion of the court was delivered by
Martin, O. J. :
I. The court found that the allegations of the plaintiff’s third amended petition were not supported by the evidence, and that the plaintiff abandoned the defendant April 2, 1887, without just cause or provocation. The evidence shows that at said time the plaintiff left the defendant, and caused a notice to be published in a newspaper at St. Mary’s, which circulated also at Rossville, (near which latter place the parties resided,) warning all persons not to give the defendant credit, or sell anything to her on plaintiff’s account, and that he would not pay any debts contracted by her ; but it appears that the parties resided together afterward for some months prior to the institution of the action for a divorce by the plaintiff. And thus the question arises whether the period of abandonment of the defendant by the plaintiff ends with the commencement of the plaintiff’s action, or extends to the filing of her cross-petition for divorce for that cause. It is provided by section 642 of the code of civil procedure that “the defendant, in his or her answer, may allege a cause for a divorce against the plaintiff, and may have the same relief thereupon as he or she would be entitled to for a like cause if he or she were plaintiff.” As a general rule, pleadings subsequent to the petition relate back to the commencement of the action, (Hillyer v. Douglass, ante, p. 97, 42 Pac. Rep. 329, 330, and cases cited,) unless it be as to matters subsequently arising, which should generally be set forth in supplemental pleadings ; but this rule does not obtain where the defendant has a separate and distinct cause of action against the plaintiff, which is set up by way of cross-petition. (Toby v. Allen, 3 Kan. 399, 412, 413 ; Lanoue v. McKinnon, 19 id. 408, 413 ; Richards v. Tarr, 42 id. 547, 550 ; Water Co. v. Hill, 46 id. 145, 149.) And it seems to be the purpose of said section 642 to confer upon the defendant in a divorce suit, by means of a cross-petition, the same affirmative rights that he or she would be entitled to if commencing an independent action; and as the abandonment took place at some time before.the commencement of the action and had continued up to the filing of the cross-petition, more than two years afterward, we must hold that the court did not err in granting to the defendant a divorce on the ground of abandonment for more than one year.
II. The parties were married August 1, 1873, being the next day after the antenuptial contract was signed. The plaintiff was then about 40 years of age, and the defendant near 37. She had one son and two daughters by a former marriage, aged, respectively, 11, 15 and 17 years. He had 280 acres of land in a body in Rossville township, worth $55 an acre, and about $2,000 worth of personal property. Her property was of the value of about $50, and she had some expectation of receiving a share of an estate in the east; but this was without substantial foundation, and was never realized. Just after the marriage the defendant and her children went with the plaintiff and resided upon said land, two of the 80-acre tracts being occupied as a homestead; and the children remained there as members of the family, the son for about two years, the elder daughter about 18 months, and the younger daughter three or four years.
Contracts or settlements in consideration of marriage, which are reasonable, equitable, and not against public policy, are recognized as valid by the statutes of this state and the decisions of this court. (Gen. Stat. 1889, ¶ ¶ 3166, 3757 ; Hafer v. Hafer, 33 Kan. 449.) In the case cited the marriage settlement was upheld as just and reasonable. In that case, before the marriage, the husband was well advanced in yeai’s, and was the father of seven children by a former marriage, while the wife was a maiden lady, and she agreed to accept a child’s part of his estate instead of the usual widow’s share; and they lived together until his death. In this case the husband was in the prime of life and without children, while the wife had three, and no provision whatever was made for her support, and the plaintiff abandoned her without just cause. The contracts in the two cases are alike only in that each, if carried out, would defeat the homestead interest of the wife; but this court held in the Safer case that the contract was inoperative as to the homestead. In addition to the foregoing defects of the ante-nuptial contract in this case, we hold that it contains provisions contrary to public policy, and, being set up in the plaintiff’s petition, we must take notice of them. They seem to invite disagreement and abandonment, 'and make the same productive of profit to the party having the greater amount of property. The law of marriage, as well as the express contract of the parties, required them to live together as husband and wife during their natural lives ; but, by the violation of that law and that contract, the party having the bulk of the property might derive pecuniary profit. No marriage settlement ought to be upheld which invites and encourages a violation of the marriage vow, and this contract is of that character. By the abandonment of the wife in violation of the law of marriage, it was in effect stipulated that the guilty party should be relieved from the duty of support which that law enjoins. A contract which incites, by the hope of financial profit, the separation of married people should not be enforced. The court properly held that the contract of July 31, 1873, was “unreasonable, inequitable, and against public policy, and therefore void in law and equity.”
III. Great complaint is made as to the amount of alimony allowed. At the time of the separation the plaintiff took away from the farm about $1,000 worth of personal property, and sold the same. He also collected the rents of his farm during the litigation, amounting to about $1,100 annually. He was formerly a member of the Pottawatomie tribe of Indians, and an allotment of 320 acres of land in the Indian territory was made to him March 30, 1888, subject to the approval of the secretary of the interior, but it had not yet been approved at the time of the trial. The court found that this Indian land was worth $10 per acre. The defendant had been allowed, as alimony and expense money, during the pendency of the suit, $500 for herself, $70 to pay witnesses, and $100 on attorneys’ fees; and the court, in the final decree, allowed her $200 additional alimony, and $900 additional attorneys’ fees, and set apart to her 120 acres of the homestead tract, whereon the principal dwelling-house and orchard are situated. And it was ordered that the tract so set apart to her should be relieved by the plaintiff from the lien of certain instruments, as follows, namely : A mortgage for $650 on the entire 280 acres, given by the parties August 17, 1873 ; a mortgage of $1,500 on the entire farm, executed by them February 1, 1876, and a deed to William Neddo, brother of the plaintiff, for the two 80 acre tracts constituting the homestead, executed in March, 1880, for an expressed consideration of $6,000, but which was given as a security-for a-loan to the plaintiff, the exact amount of which is not found by the court. And it was decreed that, on failure of the plaintiff to clear the defendant’s land so set apart to her from the incumbrances of said instruments, she should be allowed to set up any defense thereto which the plaintiff might have against the same. It is contended by counsel for plaintiff that it is unjust to compel him to pay all this indebtedness, amounting to $8,150, besides some interest; but the evidence is not in the record, and it may have tended to throw doubt upon the continued existence of these incumbrances to their full amount, all of them being quite old at the time of the trial; and, in the absence of the evidence, we are unable to say that the order of the court was unjust or inequitable.
The judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Joi-inston, J :
In 1885 Prank Royse borrowed from Harriet A. Gore the sum of $2,500, and to secure the payment of the same he and his wife executed to her a mortgage upon lots 8 and 9, in block 96, in the city of Atchison. There were a house and other improve ments on lot 8, but lot 9 was vacant and unimproved until 1889. In March, 1889, Royse began the erection of a house on lot 9, and obtained material for that purpose of the value of $776.72 from G. C. Hixon & Co. Royse did not pay for the material when it was purchased, and had not sufficient funds to complete the house, and in July, 1889, he undertook to borrow a further sum of money. He notified Harriet A. Gore, who held the mortgage on both lots, that he had erected a new two-story house on lot 9, which he claimed was good security for the amount owing to her, and he requested her to release lot-8 from the lien of her mortgage so that he might use it as security to obtain a further loan. She sent her son, Charles J. Gore, who attended to business of this character for her, with authority, oral and by letter, to release lot 8 from the lien of the mortgage if, in his judgment, he found lot 9 with the improvements thereon was sufficient security for her debt. In the meantime Royse had spoken to J. H. Talbott to obtain a loan of $1,800 on lot 8, providing it could be released from the Gore mortgage, and Talbott learning that Martin Baker had money to loan suggested a loan upon this property, and Baker told Talbott that if the lot was released from the lien of the Gore mortgage Royse could obtain the money by securing him with a mortgage on lot 8. On July 10, 1889, Charles J. Gore examined the house erected on lot 9, and, upon determining it to be sufficient security, he went to the office of the register of deeds, and on the margin of the record where the Gore mortgage was recorded the following release was written, to which he signed his mother's name :
“This mortgage upon lot 8, block 96, old Atchison, herein described, is released, so as to make a mortgage this day executed by Frank Royse and wife to Martin Baker .for the sum of $1,800 the first and prior lien thereon, the mortgage to H. A. Gore remaining a second-mortgage lien upon said lot. — July 1.0,1889. — PI. A. Gore.
“Attest: D. J. Clieeord, per J. I. N., Deputy.”
Talbott at once reported to Martin Baker that the Gore mortgage had been released or postponed, and" he at once paid the sum of $1,800 to Royse, who with his wife executed and delivered to him a first mortgage upon lot 8, which was duly recorded. The interest due upon the Gore loan was paid when due until 1889, after which default was made, and Harriet A. Gore brought this action to recover the amount of her debt, and also to foreclose the mortgage upon both lots which were originally included in her mortgage. Martin Baker, who held the mortgage on lot 8, was made a party defendant, also G. C. Hixon & Co., who had furnished material for the house erected on lot 9. Baker answered, claiming a first lien upon lot 8, and G. C. Hixon & Co. set up their claim, and asked that it be declared a first lien upon lot 9.
In addition to the facts stated, the trial court found from the testimony that Harriet A. Gore never signed and acknowledged any instrument in writing authorizing Charles J. Gore to release lot 8 from the lien of her mortgage; that after he had executed the release he reported to his mother what he had done in the matter, and that she made no objection to the release further than to say that she thought her security was diminished. She took no steps to rescind or set aside the release or to question it until the foreclosure proceeding was begun, on June 25, 1890. It was found that the lumber and material were furnished by Hixon & Co. between the 26th of March, 1889, and the 12th of October of the same year, and that the building was finally completed on November 10, 1889. It further found, that in due time G. 0. Hixon & Co. filed a statement for a lien in due form, the amount of the claim being |776.72. There was a finding that on March 26, 1889, lot 8, with the house upon it, was of the value of $2,500. Lot 9, at that time being vacant, was of the value of $1,000. On July 10, 1889, when the release was executed, lot 8 was of the value of $2,500, and lot 9 of the value of $2,500. Judgment was given in favor of Harriet A. Gore for the amount of her claim, and it was decreed to be a first lien upon lot 9, and a second lien upon lot 8, while the judgment awarded Martin Baker was decreed to be a first lien upon lot 8. It was further held, that G. C. Hixon & Co. were entitled to a second lien upon lot 9. Harriet A. Gore complains of the ruling making her lien upon lot 8 inferior to that of Martin Baker, while G. C. Hixon & Co. complain of the ruling making the lien of their judgment inferior and second to that of the Gore judgment. A case-made was prepared and served in behalf of both of the complaining parties, and separate petitions in error, under different titles and numbers, have been filed by them in this court. There was no necessity for separate titles and numbers, as there is in fact but a single proceeding here, and the rulings will be reviewed in a single opinion.
The point of contention between Gore and Baker is as to the effect of the release. A mortgage may be released by a marginal entry on the record duly signed, but it is contended that Charles J. Gore was not the agent of Harriet A. Gore in executing the release, and further, that it cannot be released by an agent unless a written appointment duly signed and acknowledged by the principal is a matter of record. In view of the facts of this case, we are not required to decide whether * ‘ the release was executed in strict compliance with law. Under the circumstances, Harriet A. Gore, is estopped from questioning the authority of Charles J. Gore, or from denying that the release is effectual.. Charles J. Gore had acted as the agent of his mother in collecting interest and in other matters pertaining to this loan. With a full knowledge of the facts in the case, she instructed him to release the mortgage upon lot 8, if he deemed the- lien on lot 9 was sufficient security for the debt. Royse had asked for the release in order that he might use the lot to obtain a further loan of money. She. left it entirely to the judgment of her son as to whether .the release should be made. Baker loaned his money upon the faith of this release. Harriet A. Gore not only consented that the release should be made for this purpose, but she acquiesced in the action of her agent after he reported that the release had been executed. In a letter written to Royse several months afterward, she acknowledged that she had released'the mortgage. By.her own testimony, it appears that she expected that a portion of the money obtained upon the Baker mortgage would be used as a payment upon her claim. It is evident that she expected the loan to be made, and trusted Royse to make the promised payment. .Her son, upon whose judgment she relied, frankly states that the release was executed upon written and oral authority which he received from his mother. In signing the release, he abbreviated his mother’s Christian name, but that is of little consequence, since it appears that a letter of her own which she introduced in evidence was signed in the same manner. Under the circumstances, we think she cannot be heard to say that there was no authority for the execution of the release. Baker was entitled to a prior lien upon lot 8, and therefore that part of the judgment of the trial court will be affirmed.
What are the rights of G. 0. Hixon & Co.? They furnished lumber and material for the improvements that were made ixpon lot 9. Before the release was executed they had obtained an equity in the lot, and the agent of Harriet A.'Gore had, under her direction, inspected the improvements that had been made. From some of the testimony in the case, it appears that she was aware of the fact that the claims for the improvements made had not been paid and satisfied. The mechanic's lien attached on March 26, 1889, and at that time lot 8 was of the value of ,$2,50Q, almost equal to the amount of the Gore lien., If no third party had intervened, G. 0. Hixon & Co.. would be entitled to have the securities marshaled, and to demand the sale of lot 8 to satisfy the mortgage lien of Harriet A. Gore before subjecting lot 9 or any. part thereof to the satisfaction of her mortgage. The doctrine of marshaling securities applies in favor of mechanics-lien claimants as against mortgage creditors. In a recent case it was stated that
“the general rule in eqixity is that a creditor who is secured by a mortgage or mortgages on several pieces of property, who has actual notice of a junior mortgage on only a portion of the property, is bound to exhaust all his security for the satisfaction of his debt; and if he releases any part of his security,’ or pays to the mortgagor the proceeds derived from a sale of any portion thereof after actual notice of the rights of the junior lien-holder, he does so at his peril and must account to the junior lien-holder for any surplus realized or which ought to have been realized from all of his securities.” (Burnham v. Citizens Bank, 55 Kan. 545.) .
As Harriet A. Gore released the property knowing that the value of lot 9 had been largely enhanced by reason of the material furnished and the improvements made, she must be held to have made the release at a sacrifice of her own security, and not at a sacrifice of the existing equities of those who had furnished the material and made the improvements. They are entitled to occupy the position they would have held if no release had been made. Ap they could have compelled Harriet A. Gore to hiive resorted to the lien upon lot 8 in the first instance for satisfaction, the amount derived from the sale of that lot should be deducted from the amount of her claim or lien upon lot 9. They will, therefore, be entitled to the difference between the proceeds of the sale of both lots and the amount of the judgment of Harriet A. Gore. To this extent the judgment of the district court will be modified.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J. :
I. This case was advanced on motion of the defendant, because it was asserted that the county officers desired a speedy determination of the questions involved in the case, and especially because it was said that there was a large amount of money collected from special assessments held in the county treasury, and that the county officers were in doubt as to their duty in disposing of the same and as to the rights of the various parties who might claim an interest therein. The only parties to this action are the receiver, as plaintiff, and the board of county commissioners, as defendant. Although very long and exhaustive briefs discussing the other questions in the case have been filed, no argument is found in them with reference to any fund claimed to be held by the county treasurer. We shall consider the case, so far as we deem it necessary, as it has been discussed by counsel in their briefs. They having ignored this fund, concerning the existence of which the averments of the petition are exceedingly vague and indefinite at best, we shall also disregard it.
The main contention of counsel for the plaintiff in error is that the decision in the case of Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, in which chapter 214 of the Laws of 1887 was held unconstitutional and invalid, is wrong. It is very earnestly insisted that the plaintiff in this case has never had a hearing in this court on the question of the validity of the law; that very large interests are involved ; and that the court should again carefully reconsider this question. Every decision of an important question of law must necessarily affect the interests of all persons whose rights must be determined by the same rule, and this without their having had a hearing in the first instance. For this, as well as other reasons, it is of the utmost importance that every rule announced should be sound. It cannot be urged with any truthfulness that the question as to the validity of this road-improvement law was hastily disposed of, without due consideration. It was repeatedly argued before the court in numerous cases, and the decision in the case cited was reached with an understanding of the disastrous consequences that must necessarily follow to individuals not parties to that litigation. After the case was decided in this court, the circuit court of the United States for the district of Kansas, in the case of National Bank v. Board of Commissioners, 61 Fed. Rep. 436, arrived at the same conclusion, and also declared the law unconstitutional. On error to the circuit court of appeals, the judgment was affirmed, though on other grounds. (68 Fed. Rep. 878.) The writer is entirely satisfied with the result reached in the Abbott case, and the court is disinclined to overrule it after it has been followed by the federal court.
II. It is contended that, even though the act of 1887 be held unconstitutional, the plaintiff is entitled to recover the reasonable value of the improvement made, not under the contract, but as upon a quantum meruit, for the benefit derived by the county from the expenditure of the bank. Many cases are cited in which a recovery has been allowed for the reasonable value of services rendered or of property delivered, where the contract was invalid for one reason or another. The general principle running through the cases in which corporations, municipalities and political subdivisions of the state have been held liable, even though the particular contract sought to be en forced was invalid, is that it has received a benefit for which it justly ought to pay; but in these cases the invalidity of the contract was because of a failure to observe some prescribed mode of procedure, or a want of authority in a particular officer, agent or person to bind the corporation or municipality in the manner in which it was attempted to be done. In all these cases there was a capacity in the corporation or municipality to incur an obligation of the kind with which it was sought to be charged. But where there is an utter incapacity in the municipality to enter into any such contract or agreement as is set up, or to undertake any work of the character of that for which payment is asked, no recovery can ever be had, because it is entirely without the scope and functions of the municipality. The distinction between these two classes of cases is illustrated by those cited in the briefs, and heretofore decided by this court. School districts have been held liable for schoolhouses built, and for furniture for the same, where the action of the district officers was so irregular that the contracts entered into were insufficient to bind the districts ; but the districts, having the power under the law to build schoolhouses and to furnish them, and having actually received and enjoyed the benefits of the property and labor of others, were held liable to pay the reasonable value of the benefits actually enjoyed. (Sullivan v. School District, 39 Kan. 347 ; School District v. Sullivan, 48 id. 624; Furniture Co. v. School District, 50 id. 727.) A similar principle has been applied with reference to payment for street improvements by cities. (Sleeper v. Bullen, 6 Kan. 300 ; Ryan v.Coldwater,46 id. 242.) But where there is an utter want of power in the corporation to enter into any contract whatever for the work done, there can be no ratification of the void contract, and no liability can flow from it, or from any attempted ratification of it. This is well illustrated by the case of Salt Creek Twp. v. Bridge Co., 51 Kan. 520, where it was sought to charge the township for the construction of a bridge over Salt Creek. The contract was invalid because of a want of power in the officers to make it; but it was sought to charge the township on an implied contract because the bridge had actually been constructed in the township on a public road, where the township' had the full benefit of it, and it was very earnestly insisted that the township was estopped from denying its liability for the reasonable value of the bridge ; but this court held that the township officers were wholly without power to create a liability on the township of that kind, and that they could not do indirectly what they were without power to do directly. The principle of that case is identical with the one now under consideration. That was a road improvement made in the township, under a contract with the township officers claiming authority to bind the township by such contract; but the proposition, having been submitted to a vote of the people, failed to carry by the requisite majority, and there was no law authorizing the construction of a bridge costing so much money at the expense of the township without it. The bridge company were therefore held wholly without remedy against the township. To the same effect is Pleasant View Twp. v. Shawgo, 54 Kan. 742. In this case it is sought to charge the county with the cost of paving a county road. This is an improvement that neither the county nor its officers assuming to act in its behalf have any power under the law to make. The county commissioners cannot bind it by any contract for paving a road, nor can contractors, even though acting in accordance with a supposed contract executed on behalf of the county by county commissioners, road commissioners, or any other persons, impose a liability on the county which the law does not authorize the imposition of by any means, or through any instrumentality. Until there is a valid law' providing for the paving of county roads at the expense of the county, a liability against it for such an improvement cannot be created in any manner. The distinction between these cases and that of a city improving its streets is broad and wrell defined. The city is charged with the duty of keeping its streets in order, and has general authority to improve them, but no such duty nor authority is imposed on the county or the commissioners or its representatives. "Where a contract is void at law' for want of power to make it, a court of equity has no jurisdiction to enforce such a contract, or, in the absence of fraud, accident, or mistake, to so modify it as to make it legal, and then enforce it.” (Hedges v. Dixon Co., 150 U. S. 182.) To hold the county liable to pay the reasonable value of the work done in improving the road would be, in effect, holding that the board of county commissioners has power, under the law, to cause county roads to be paved at the expense of 'the county. Por, surely, if the commissioners can bind the county, by an invalid and unauthorized contract and an acceptance of the work done under it, to the payment of the reasonable value of the improvement, it can bind the county by contract to pay as much. Before any obligation to pay can be imposed on the county there must be lawful authority to create the indebtedness. It is not claimed that any such authority is expressly conferred by any other act of the legislature than chapter 214 of the Laws of 1887. This act being invalid, leaves the commissioners wholly without power to bind the county.
The judgment of the district court is. affirmed.
Martin, 0. J.; concurring.
Johnston, J., dissenting.
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The opinion of the court was delivered by
Maktin, C. J.
: The court committed material error in some of the instructions given to the jury. There was no question in the case about machinery or appliances, but it is the duty of a railway company to exercise ordinary care to provide its employees with a reasonably safe place to work ; and in the present case this rule would apply to the side-track where Chambers was expected to make the coupling. This track was left by the company in an incomplete condition for want of ballast of earth or any other material; but it was error to say that it should be so kept as to be “ least likely to cause injuries, so far as this can reasonably be done.” This would be to impose upon the company the highest degree of diligence, whereas the law requires only ordinary care as to its employees. Railway companies, sometimes, at terminal and other important stations, plank their tracks or fill with cinders or other ballast between the ties from one end to the other, so as to make a level surface, and this condition would probably be “least likely to cause injuries” to brakeman coupling cars upon the same; but the law does not impose this high degree of diligence upon railway companies at every place where brakemen may be required to couple cars. The definition of contributory negligence contained in instruction 4 is erroneous, and in some cases might be misleading, and it should not have been given. But perhaps the instruction most likely to mislead is the sixth. It first brought into the case the suggestion of “malicious and wilful or wantonly reckless” conduct on the part of the railway company, for there was no evidence to justify such an imputation. (K. P. Rly. Co. v. Peavey, 29 Kan. 169, 180; K. C. Ft. S. & G. Rld. Co. v. Kier, 41 id. 661, 670.) The closing sentence of the instruction last quoted in the statement is also objectionable. It was proper to instruct the jury that the measure of care required of Chambers by the law was only such as an ordinarily prudent person would have exercised under the same circumstances and conditions ; but the law does not authorize a gradation of the degrees of care and prudence required according to any particular classification of employees. One class is governed by the same law as every other as to the degree of diligence to be exercised. In other words, the same law governs all.
There was no error in overruling the demurrer to the evidence, nor the motion for judgment in favor of the railway company on the answers of the jury to the particular questions of fact. Whether the railway company exercised ordinary care, and whether Chambers was guilty of contributory negligence such as to preclude his personal representative from a recovery on account of his death, were questions of fact to be submitted to the jury under proper instructions ; but as the court erred in this respect the judgment must be reversed, and a new trial awarded.
All the Justices concurring.
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