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The opinion of the court was delivered by Prager, J.: This is a declaratory judgment action brought by Upland Mutual Insurance, Inc., seeking a determination of whether or not it has coverage and a duty to defend under a homeowner’s insurance policy issued to Raymond E. and Viola J. Noel. On November 28, 1970, a tragic collision occurred between Evo auto mobiles in Dickinson county, Kansas. One was a 1965 Chevrolet driven by Steven E. Noel and the other vehicle was driven by Rudolph Noel. Both drivers were sons of the defendants-appellants, Raymond E. and Viola J. Noel. Both of the young men were killed. Mary Forrester was a passenger in the 1965 Chevrolet driven by Steven Noel. Fredrick L. Forrester, Jr., was a passenger in the vehicle driven by Rudolph Noel. Mary was killed in the accident and Fredrick L. Forrester, Jr., suffered severe personal injuries. The defendants-appellees, Fredrick L. Forrester, Sr., and Marjorie Forrester, are the surviving parents and hens of Mary Forrester. They filed a claim against the estate of Steven E. Noel, deceased, in the probate court of Dickinson county seeking to recover damages for the wrongful death of their daughter Mary. Likewise Fredrick L. Forrester, Jr., filed a claim seeking to recover damages for his own personal injuries. The probate court allowed Fredrick L. Forrester, Jr., the sum of $65,000 as damages for his injuries and allowed the senior Forresters the sum of $32,000 as damages for the wrongful death of Mary. On September 7, 1972, the Forresters filed an action in the district comt of Dickinson county against Raymond E. and Viola J. Noel seeking recovery for the above amounts from the Noels on the theory that Raymond E. Noel negligently entrusted the 1965 Chevrolet to Steven E. Noel and made it possible for him to drive and operate the same knowing that Steven E. Noel was a careless and reckless driver and was apt to cause injury to another in its use. This action will be referred to as case number 17,615 or the damage action. The Noels having been sued requested Upland Mutual to defend them in case number 17,615 under the provisions of their homeowners insurance policy. Upland Mutual took the position that it had no coverage under the homeowner s policy issued to the Noels and responded by filing this declaratory judgment action (case number 17,632) in which it sought a determination that its homeowner’s policy did not afford protection to the Noels in the Forrester damage action. By agreement of the parties the damage action has been stayed pending determination of this declaratory judgment action. In the trial court the parties stipulated to the following additional facts: Steven E. Noel was the natural son of Raymond E. and Viola J. Noel and was bom on May 13, 1951, Steven married Judy Sutton on March 9, 1969, and from that date until the date of his death on November 28, 1970, they were husband and wife. At the time of the accident the title of the 1965 Chevrolet driven by Steven was in the name of Raymond E. Noel and/ or Steve Noel. On or about July 1, 1970, Steven was without an automobile and at that time Raymond E. Noel borrowed the money to buy the 1965 Chevrolet. Steven thereafter made the payments on the mortgage for such pinchase as they became due. Thereafter Steven E. Noel had the principle use of the Chevrolet although his parents did have the possession and control of it at times. The homeowner’s policy issued by Upland Mutual to the Noels provided in pertinent part as follows: “ ‘Provisions applicable to Section II “ ‘This company agrees with the named insured: “ ‘INSURING AGREEMENTS “ ‘1. COVERAGE E — PERSONAL LIABILITY: “‘(a) Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.’ “SPECIAL EXCLUSIONS “ ‘Section II of this Policy does not apply: “‘(b) under Coverages E and F, to the ownership, maintenance, operation, use, loading and unloading of (I) automobiles or midget automobiles while away from the premises or the ways immediately adjoining, . . “ ‘4. Supplementary Payments: With respect to such insurance as is afforded by this policy for Coverage E, this Company shall pay, in addition to the applicable limits of liability: “‘(d) all reasonable expense, other than loss of earnings, incurred by the insured at this Company’s request.’ ” The issues of law submitted for determination by the trial court were as follows: (1) Does plaintiffs contract of insurance provide coverage upon the defendant, Raymond E. Noel, and obligate the plaintiff to defend case number 17,615? (2) Does plaintiff’s contract of insurance obligate the plaintiff to pay any judgment within its limits of liability that might be rendered against Raymond E. Noel in case number 17,615? (3) Is plaintiff obligated to the defendants, Raymond E. Noel and Viola J. Noel, to reimburse them for their necessary legal fees and expenses in defending case number 17,615? (4) Is plaintiff obligated to the defendants, Raymond E. Noel and Viola J. Noel, to reimburse them for their necessary legal fees and expenses for defending this declaratory judgment action? On January 10, 1973, the trial court filed its Memorandum of Decision which included the following conclusions of law: ‘It is the opinion of the Court that the cause of action stated in Case No. 17,615 is grounded in common law negligence in that defendant’s negligent action allowed a dangerous instrumentality to be at the disposal of a careless and reckless person. The details of the alleged negligence were spelled out in the petition and included causing and permitting Steven E. Noel to purchase and operate an automobile. Nowhere was it alleged that the insured, Raymond E. Noel, maintained, operated, or used the automobile or that the same was negligently driven by him or his agent. “Regardless of the truth of the allegations, nothing in the petition brought the claim within the policy exclusion. It follows, therefore, that the Insurance Company was obligated (a) to defend insured in Case No. 17,615 and (b) to pay any judgment within its limits of liability that might be rendered against insured, Raymond E. Noel, in Case No. 17,615. “Following the Gowing case, 207 Kan. 78, this Court finds that since the insurance company was under a contractual duty to defend insured Noel in Case No. 17,615 and failed to do so, it became liable to pay the attorney fees incurred by the Insured in defending that case. “As for attorney fees of the insured Noel in the present Case No. 17,632, the insurance contract issued by plaintiff requires it to reimburse insured for all reasonable expenses incurred at the company’s request. This is an extension of the contractual guarantee that the policyholder will be protected from all expense and attorneys fees even if a false, fraudulent, or groundless action is filed against him. The insurance company wanted and sought a declaratory judgment of non-liability. The filing of this case required insured to appear and answer and constitutes a request of the plaintiff. Therefore, plaintiff is liable under the provisions of its contract for the attorney fees incurred by the insured (Connecticut Fire Insurance Company vs. Reliance Insurance Company, 208 Fed. Supp. 20).” Thereafter Upland Mutual brought a timely appeal to this court. In its brief Upland Mutual summarizes its position as follows: The basic purpose of a homeowner s policy is to provide protection for home-premises related occurrences. Accordingly the purpose of the off-premises auto exclusion is to exclude coverage from all liability arising from an off-premises auto accident regardless of the theory of recovery asserted. Any liability on the part of Raymond Noel as a negligent entruster of a car is dependent upon establishing actionable negligence on the part of his son Steven in the operation of the automobile jointly owned by Raymond and Steven Noel. There is no coverage afforded under Upland’s homeowner policy for the off-premises auto accident here involved; therefore Upland has no duty to defend the Forrester suit or respond in damages; and is not liable for any attorney fees. The Noels and the Forresters have filed separate briefs but basically adopt the same position. They contend that a homeowner’s policy is a comprehensive personal liability insurance policy as shown by its insuring clause. The premiums are adequate to cover this particular liability because of tire rarity of such happenings. There are only a few reported cases covering this exact situation, each of which held there was coverage. The policy should be construed in favor of the insured and the exclusion must be strictly construed against the insurer and in the way a reasonable person would have understood the policy. Since only comprehensive personal liability insurance would protect Raymond E. Noel from the liability charged against him, he could properly assume from reading his policy that he had such coverage and that the words “ownership, maintenance, operation, use” would not be enlarged to also mean give or purchase for another. The liability claimed by the Forresters against Raymond E. Noel is solely for his negligence in making it possible for his reckless son to own and operate an automobile. This liability is not based on the “ownership, maintenance, operation, use” of an automobile. There is coverage under the policy. Upland Mutual must defend the Noels against the Forresters’ action, pay any judgment within its policy limitations and pay attorney fees and expenses of litigation incurred by the Noels in defending themselves. We hold that the trial court correctly decided all of the issues of law submitted to it. Upland Mutual was obligated under its homeowner’s policy to defend the Noels against the Forresters’ action. It is the 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 clear and explicit terms. (Krug v. Millers’ Mutual Insurance Ass’n., 209 Kan. 111, 495 P. 2d 949.) In the homeowner’s policy involved in this case the company agreed with the named insured to pay on behalf of the insured all sums which the insured should become legally liable to pay because of bodily injury and property damages. There is nothing in this broad insuring clause which restricts coverage to accidents or injuries occurring on the premises of the homeowner. In fact it is clear that the insuring clause covers a wide variety of accidents which might occur off the premises. Any escape from liability by Upland Mutual under its policy must be found in the special exclusion which has been set forth in full above. We have held that where an insurer attempts to avoid liability under an insurance policy on the ground that the loss for which recovery is sought is covered by some exclusionary clause, the burden is on the insurer to prove the facts which bring the case within the specified exception. (Leiker v. State Farm Mutual Automobile Ins. Co., 193 Kan. 630, 396 P. 2d 264.) In this case the action filed by the Forresters against the Noels was not based upon the “ownership, maintenance, operation, use, loading or unloading of . . . automobiles”, even though the immediate cause of the injury and death was Steven s operation of the automobile. The basis of the Forresters’ action was the alleged negligence of the Noels in knowingly entrusting an automobile to a careless and reckless driver. The theory of liability upon which the petition was framed is well-recognized in Kansas. (Priestly v. Skourup, 142 Kan. 127, 45 P. 2d 852; Richardson v. Erwin, 174 Kan. 314, 255 P. 2d 641; and Fogo, Administratrix, v. Steele, 180 Kan. 326, 304 P. 2d 451.) Nowhere is it alleged in the Forresters’ petition that the Noels are liable on the theory that they owned, maintained, operated or used the automobile or that the automobile was negligently driven by the Noels or their agent. The theory of the Forresters’ damage action is not directly related to the “ownership, maintenance, operation, use” of the vehicle. The coverage issue presented in this case is a matter of first impression in Kansas. The result which we have reached is in full accord with cases which have determined the identical issue in New Jersey, New York and Minnesota. (McDonald v. Home Ins. Co., 97 N. J. Super 501, 235 A. 2d 480; LaLomia v. Bankers & Shippers Insurance Company, 312 N. Y. S. 2d 1018, 35 A. D. 2d 114; Travelers Insurance Company v. Beschel, 336 N. Y. S. 2d 370 [1972]; Government Emp. Insur. Co. v. Chahalis, 338 N. Y. S. 2d 348 [1972]; Republic Vanguard Ins. Co. v. Buehl, 295 Minn. 327, 204 N. W. 2d 426 [1973].) All of the cases just cited are “negligent entrustment” cases. The rationale of these cases was also followed in Cooperative Fire Ins. Co., Etc. v. Vondrak, 346 N. Y. S. 2d 965, (Dram Shop Act); and Shelby Ins. Co. v. U. S. Fire Ins., 12 Mich, App. 145, 162 N. W. 2d 676. The only “negligent entrustment” case decided in a contrary manner which has been called to our attention is Federal Insurance Company v. Forristall, 401 S. W. 2d 285, where the issue is not discussed and the reason for the decision is not made clear. Counsel for Upland Mutual have cited in their brief many cases from other jurisdictions in support of their position. They rely principally upon LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 268 A. 2d 663. LaBonte and the other cases cited are not “negligent entrustment” cases. In those cases the theory of liability asserted against the homeowner insured was a vicarious type of liability based upon master and servant, agency or some statutory liability which made the insured homeowner jointly liable for the negligence of the driver of the automobile. We believe that those cases are distinguishable from “negligent entrustment” cases. In those cases the liability of the insured homeowner was based directly and necessarily upon negligence in the ownership, maintenance, operation or use of an automobile. The rationale of the “negligent entrustment” cases is not founded upon the negligence of the driver of the automobile but upon the primary negligence of the entruster in supplying the chattel, an automobile, to an incompetent and reckless driver. Hence we conclude that the cases relied upon by Upland Mutual are not controlling in this case. Where there is coverage the insurance policy before us expressly provides that Upland Mutual is required to defend the Noels against an action even if the suit is “groundless” in law or “false or fraudulent” in fact. We do not in any way pass upon the merits of the Forresters’ damage action. The actual liability of the insured to the claimant is not the criterion which places upon the insurance company the obligation to defend. Here Upland Mutual had an obligation to defend the Noels against the Forresters’ action since the Forresters’ petition contained allegations which, if sustained, would impose a liability covered by the policy. There remains for consideration the question of the allowance of attorney fees. Since we have held that there is coverage and a duty on Upland Mutual to defend the Noels under their homeowner’s policy, the Noels are entitled to recover from Upland Mutual any attorney fees and expenses incurred to date in defense of the Forresters’ damage action against them. (Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P. 2d 403.) We further hold that the Noels are entitled to recover attorney fees and expenses o£ litigation incurred in defense of tins declaratory judgment action. We recognize that there is a decided split of authority on the subject. The cases pro and con are cited in 7A Appleman, Insurance Law and Practice, § 4691 (1962). Appleman after pointing out the decisions holding that where an insurer failed to defend until after an adverse decision in a declaratory judgment action instituted by it, the insurer was not liable to pay the attorney fees and expenses incurred by the insured in the declaratory judgment action, in the absence of fraud, bad faith or stubborn litigiousness on the part of the insurer, makes the following critical comment: “. . . But, despite the qualifications placed upon this rule by the court, it still appears to be unfair to the insured. After all, the insurer had contracted to defend the insured, and it failed to do so. It guessed wrong as to its duty, and should be compelled to bear the consequences thereof. If the rule laid down by these courts should be followed by other authorities, it would actually amount to permitting the insurer to do by indirection that which it could not do directly. That is, the insured has a contract right to have actions against him defended by the insurer, at its expense. If the insurer can force him into a declaratory judgment proceeding and, even though it loses in such action, compel him to bear the expense of such litigation, the insured is actually no better off financially than if he had never had the contract right mentioned above. . . .” (pp. 512, 513.) We find the comments of Appleman just quoted to be persuasive. In this case the trial court ruled that Upland Mutual is obligated to pay the Noels’ attorney fees incurred in the declaratory judgment suit — not on the basis of a denial of a claim without just cause or excuse under K. S. A. 40-256 — but because the filing of this suit constituted a “request” by Upland and therefore the company is obligated under its policy to reimburse the insured Noels for all reasonable expenses incurred at the company’s request. The position of the trial court is supported by Connecticut Fire Ins. Co. v. Reliance Ins. Co. of Madison, Wis., 208 F. Supp. 20 (D. Kan. 1962); Occidental Fire and Casualty Company v. Cook, 92 Idaho 7, 435 P. 2d 364 (1967); Utilities Construction Corp. v. Peerless Ins. Co., 233 F. Supp. 64 (D. Vt. 1964); Cohen v. Am. Home Assurance Co., 255 Md. 334, 258 A. 2d 225 (1969); Morrison v. Swenson, 274 Minn. 127, 142 N. W. 2d 640 (1966); Travelers Indem. Co. v. Rosedale Pas. Lines, Inc., 55 F. R. D. 494 (D. Md. 1972). Farmers Casualty Company (Mutual) v. Green, 390 F. 2d 188 (10th Cir. 1968), denied attorney fees to the insured in a declaratory judgment action brought by the insurer but did not consider the contractual obliga tion of the insurance company under the “request” section of the policy. Hence we do not consider that case to be of precedential value in this case. 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 Foth, C.: The issue in this case is whether a married woman who quits her job to accompany her husband to a different city is thereby disqualified for unemployment compensation benefits until she again becomes employed and earns eight times what would otherwise be her weekly benefit. The claimant, Mrs. Edna M. Shelton, began working at covered employment in a Topeka nursing home in June, 1967. On June 30, 1971, she quit. Her announced reason was that her husband had found a job in San Antonio, Texas, and she wanted to join him there. In San Antonio she says she looked for work, but was unsuccessful; on July 22 she applied for unemployment compensation. Her claim was denied by an examiner of the employment security division on August 6, and she appealed. A hearing was held by a referee on October 5, and the examiners decision was affirmed. (In the meantime claimant had returned to Topeka and had found new employment.) The employment security board of review also affirmed and claimant commenced this statutory action in the district court of Shawnee county to secure judicial review. Her claim met the same fate there, and she has now appealed to this court. At each level below claimant was held to be disqualified for benefits solely because of the reason she gave for quitting her job, viz., to join her husband in his new home. It was found at all levels that she left “because of domestic or family responsibilities.” Therefore, it was held, she was disqualified under the first clause of the proviso in K. S. A. 44-706 (a). That statute will be discussed below. Claimant contends that if the statute is construed, as it was below, to deny her benefits simply because of her reason for quitting, it denies her the equal protection of the laws. She makes a two-pronged attack on the classifications in the statute. First, she says that disqualifying those who leave a job because of domestic or family responsibilities creates an unreasonable classification which bears no reasonable relationship to the objectives of the unemployment compensation law. Second, she argues that by disqualifying those in particular who leave their job to accompany their spouses to another state, the statute imposes an unwarranted restriction upon the constitutionally protected right to travel. Her argument requires first an overall look at and then a detailed analysis of the applicable portions of the employment security law. K. S. A. 44-705 prescribes qualifications for eligibility for unemployment compensation benefits. Highly summarized, under that statute an -unemployed claimant is eligible if he (a) has registered for work, (b) has made a claim for benefits, (c) is able to work and available for work, (d) has gone through a one-week waiting period, and (e) has sufficient work credits. K. S. A. 44-706 specifies grounds for the disqualification, for the various periods indicated, of an otherwise eligible claimant. These include: (a) One who quits work voluntarily: 6 weeks, except certain persons who must earn eight times their weekly benefit to remove the disqualification. (This is the paragraph under which claimant was disqualified below.) (b) One discharged for breach of a duty to his employer: 6 weeks, except that if discharged for “gross misconduct” he must earn eight times his weekly benefit to remove the disqualification. (c) Failure to apply for or accept suitable work: 6 weeks. (d) Participating in a labor dispute: any week of participation. (e) Receiving benefits from another state: any week of receipt. (/) Receiving veterans unemployment benefits: ditto. (g) Falsifying a claim for benefits: 1 year. (h) Receiving workman’s compensation: any week of receipt. The two sections, read together, form a fairly consistent pattern. A person meeting all of the requirements of 44-705 is “eligible” for benefits, but if he fits any one of the categories of 44-706 he is “disqualified.” The duration of the disqualification is dependent on its nature. The variations, we take it, represent a legislative judgment as to what is appropriate to foster the purpose of the act. That purpose is to protect against the economic hardships attendant on “involuntary unemployment.” K. S. A. 44-702; Southwestern Bell Tel. Co. v. Employment Security Board of Review, 210 Kan. 403, 502 P. 2d 645; Goodyear Tire & Rubber Co. v. Employment Security Board of Review, 205 Kan. 279, 469 P. 2d 263, Syl. ¶ 1. Thus there runs through 44-706 the common thread of recognizing the volition of the claimant as a disqualifying factor, e. g., as in the case of one who refuses to look for work or take it when offered. If he is “voluntarily” unemployed, he receives no benefits. In some instances this idea approaches the concept of “fault,” as where the worker discharged for gross misconduct faces a more severe disqualification than one fired for ordinary breach of duty. Claimant, as noted, was disqualified under K. S. A. 44-706 (a). That paragraph reaches two main groups, which for our purposes we have designated T and “II.” In turn, group II encompasses four sub-groups. For convenience we have editorially inserted our numbers, brackets and parentheses into the paragraph: “An individual shall be disqualified for benefits: [I] For the week in which he left work voluntarily without good cause and for the six (6) consecutive weeks which immediately follow such week: [II] Provided, That if an individual leaves work by his own action [1] because of domestic or family responsibilities (not including pregnancy), [2] self-employment or [3] to retire because of disability or old age, or [4] to attend school, such individual shall be disqualified for benefits until he again becomes employed and has had earnings of at least eight (8) times his weekly benefit amount.” Under this paragraph group I consists of those who merely quit their jobs, “voluntarily without good cause,” and for no particular reason. They are disqualified for the week they quit and the next six. After that they may start drawing benefits if they are still unemployed, and if they meet all the requirements of 44-705 such as actively seeking employment. Members of group II may also be said to have left “voluntarily without good cause,” i. e., they have left by their “own action.” They, however, must do more than merely endure a waiting period and seek employment; they must actually become employed and earn wages of at least eight times their benefits. The only reason for this separate treatment is. their reason for quitting. It is here that claimant makes her first assault on the statute’s classifications. There is no justification, she says, for imposing greater disadvantages on those who have a good reason for quitting their jobs than on those who have none at all. Her argument is based on familiar equal protection principles, most recently restated by this court in Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362: “Under federal and Kansas equal protection constitutional provisions, a state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation.” “The constitutional principle of equal protection does not preclude the state from drawing distinctions between different groups of individuals, but does require that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” (Syl. ¶¶ 1 and 2.) Applying these principles, she says that if the purpose of the act is to protect against “involuntary” unemployment, then all who are voluntarily unemployed should be treated alike. (This overstates her case, but we shall refine her argument in a moment.) The board responds by saying that there are substantial differences among the voluntarily unemployed which justify different treatment. Prime among them is the “gross misconduct” versus simple “breach of duty” distinction of paragraph (b). In each case under that paragraph the worker’s own conduct resulted in his unemployment, but different consequences flow from the differences in the character of that conduct. As to those voluntarily unemployed under paragraph (a), the board differentiates our group I (those who quit for no reason) from group II (those who had a “good” reason) on the basis that the latter have not only quit, but have done so for reasons demonstrating that they have withdrawn from the labor market. This is the only reason advanced to justify the distinction, and the only one that occurs to us. Once a person has withdrawn, the board says, it is not unreasonable to require him to demonstrate that he has once again rejoined the labor market before becoming eligible for benefits. The requirement that he actually get a job and accrue minimum earnings is seen as a valid criterion for testing the bona -fides of the worker’s re-entry into the ranks of wage earners. Claimant is willing to concede this point as a general principle, at least as it applies to those in the other three subclasses of group II. Thus, she says, a person who becomes self-employed, or who retires, or who quits to go to school, may well be deemed to have withdrawn from the labor market. And she also concedes that those who have withdrawn may properly be treated differently from those who have not. What she does contend — and this is the main thrust of her argument — is that it cannot be conclusively presumed that a person who quits because of “domestic or family responsibilities” has withdrawn from the labor market. Such a presumption, she says, sweeps too broadly. It includes more than the woman who quits to become a full-time housewife, or to take care of a child or a sick husband; these, she concedes, may be said to have withdrawn. It goes further and, as applied in this case, encompasses the wife who moves to another city to accompany her husband but who has no intention of withdrawing from the labor market. Such a wife, she says, should be treated no worse than a single woman who quits to seek greener pastures elsewhere, and certainly no worse than one who moves to be with a fiance or paramour. In either of those cases the single woman would have her disqualification automatically removed at the end of the six-week waiting period. (Whether she would be eligible or not is another question.) We believe her argument has merit. First, irrebuttable presumptions have heavy going in constitutional seas; the ones recently considered have all foundered. Cleveland Board of Education v. LaFleur, _ U. S. _, 39 L. Ed. 2d 52, 94 S. Ct. 791, 42 U. S. Law Week 4186 (January 21, 1974) (physical incapacity of a teacher who is either pregnant or has just borne a child); Vlandis v. Kline, 412 U. S. 441, 37 L. Ed. 2d 63, 93 S. Ct. 2230 (nonresidence for state university tuition purposes); Stanley v. Illinois, 405 U. S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (unfitness of father to have custody of an illegitimate child); Carrington v. Rash., 380 U. S. 89, 13 L. Ed. 2d 675, 85 S. Ct. 775 (nonresidence of a serviceman for voting purposes). Therefore, she cannot be irrebuttably presumed to have withdrawn from the labor market just because her reason for quitting was “because of domestic or family responsibilities.” Second, if she did not so withdraw, then there is no justification for treating her differently than other persons who leave work “voluntarily without good cause.” Since withdrawal from the labor market is the only justification for creating the class which we have referred to as “group II,” if she does not fall into that class in fact, she cannot be put there by legislative or administrative fiat. Claimant’s conclusion from the foregoing analysis is that the clasification and statute must be stricken down as unconstitutional. We do not agree. “The policy of courts is to uphold legislative intent rather than to defeat it, and if there is any reasonable way to construe legislation as constitutionally valid it will be so construed.” Sanders v. State Highway Commission, 211 Kan. 776, 508 P. 2d 981, Syl. ¶ 6. (And see cases cited therein, 211 Kan. at 787.) We therefore search for a construction of the statute which will uphold both the legislative intent and the constitutionality of the statute. From what has been said it is apparent that such a construction is close at hand. The intent, both sides agree, is to put to the test only those who have withdrawn from the labor market; i. e., it is only they who are required to again secure employment after they become disqualified. Since it is intended that withdrawal from the labor market be a condition of disqualification under “group II” this intent may be easily effectuated by simply reading that condition into the statute. Such a construction may, of course, require a somewhat more difficult administrative determination of a claimant’s entitlement to benefits. In addition to fitting a claimant into one of the four subclasses in group II, it will also be necessary to determine whether the claimant’s conduct in fact evinces an intent to withdraw from the labor market. In this case, for instance, the examiner found “As the claimant withdrew from the position she held in the labor market to fulfill her obligation to reside at the domicile of her husband’s choosing, she left work because of her domestic or family responsibilities.” It was on this basis, also, that the referee affirmed because “It is clear from claimant’s own statements that she falls within the disqualification of the law as it has been interpreted by this agency.” (Emphasis added.) That will no longer be sufficient. What will be required administratively is a little further inquiry, such as in this case to determine whether the domestic or family responsibilities which caused claimant to quit, or her subsequent conduct, were of such a nature that she must in fact be deemed to have withdrawn. We do not regard this as an intolerable burden on those who must administer die act. Neither do we regard such a result as an unwarranted rewriting of K. S. A. 44-706 (a). We have only recently demonstrated that the litmus test of that statute is not infallible, in Southwestern Bell Tel. Co. v. Employment Security Board of Review, supra. We held there that an employee who “retired,” arguably because of “old age,” was not disqualified where the retirement was the result of a mandatory age limit in a collective bargaining agreement. The case illustrates that the literal terms of the statute are not absolutely controlling in all circumstances. Our examination of cases cited from other jurisdictions reveals that in them there is a split of authority as to whether workers who quit for reasons similar to claimant’s do so with or without “good cause.” That is not an issue here: claimant does not contend that her domestic responsibilities constituted “good cause” for quitting, only that she should be treated in the same manner as others who quit without good cause, but who continue to be attached to the labor market. Our conclusion makes it unnecessary to consider claimant’s argument about the alleged restriction on her right to travel. We note, however, that her situation would have been the same had she followed her husband to Wichita instead of San Antonio. There remains to be decided the proper disposition of this case. As of now there has been no determination of whether claimant in fact withdrew from the labor market. We have assumed she did not for the purposes of this decision, based on her statement that she “looked for work in Texas.” Neither has there been a determination of her “eligibility” under 44-705. The agency’s inquiry stopped once her reason for quitting had been ascertained; under the prevailing agency interpretation she was ipso facto disqualified and any further inquiry would have been irrelevant. The agency should now have an opportunity to determine whether claimant is eligible for benefits, whether she is disqualified under the standards set forth above, and if she is entitled to benefits, the amount thereof. The judgment is reversed with directions to remand the case to the employment security board of review for further proceedings in accordance with this opinion. APPROVED BY THE COURT.	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The opinion of the court was delivered by Owsley, J.: The defendant, Dave Culbertson, appeals from trial errors on his conviction on two counts of possession of derivatives of cannabis sativa L. (marijuana) with intent to sell the same in violation of K. S. A. 65-4125 (b). Charges against defendant were based upon alleged sales of hashish oil and hashish to Russell Payne, an undercover narcotics agent and deputy of the Finney County sheriff’s department. Payne testified he had known defendant for several months before being hired as a narcotics agent; that on September 22,1972, he purchased a .22 caliber shell filled with hashish oil, a derivative of marijuana, from defendant at his home for $20.00. He further testified that on October 30, 1972, he was again at defendant’s residence in Garden City. During the conversation Payne asked if defendant knew where he could get good hashish; defendant left the room and returned later with a small cube of hashish which Payne purchased for $20.00. He and the others present smoked some of it, after which he turned over the remainder to his supervisor, Finney County undersheriff, Ken Heinrichs. Heinrichs testified he reimbursed Payne for the purchases, marked them as evidence, and took them to the KBI laboratory in Topeka for analysis. The testimony of Russell Payne was the basis of the prosecution. When questioned about the amount of work Payne had done for the Finney County sheriff s department, undersheriff Heinrichs replied, “Mr. Payne while working for this office was working on several cases, of which we have had convictions.” Defendant contends this answer seriously prejudiced his right to a fair and impartial trial. Heinrichs’ testimony to the effect that others had believed Payne’s testimony at similar trials was hearsay which may have bolstered Payne’s credibility. On defendant’s objection, the court immediately admonished the jury to disregard Heinrichs’ answer. The court, however, did not grant defendant’s accompanying motion for mistrial and defendant contends this was error. The court’s instruction to the jury to disregard Heinrichs’ statement cured any error which its temporary reception might have created. (City of Wichita v. Hibbs, 158 Kan. 185, 146 P. 2d 397; State v. Kowalec, 205 Kan. 57, 468 P. 2d 221; State v. Carter, 214 Kan. 533, 521 P. 2d 294, Syl. ¶ 4.) The error in Heinrichs’ statement was further minimized because defendant was not restricted in his efforts to impeach Payne and was given free rein in casting doubt upon Payne’s credibility. If there was any residual effect upon the jury, it would affect only the weight given by the jury to Payne’s testimony. Evidence to impeach or rehabilitate a witness affects only the credibility of die witness and may not be considered as substantive evidence. (98 C. J. S. Witnesses, § 537, p. 473.) A mistrial results when, before trial is completed, the trial court concludes there is some error or irregularity that prevents a proper judgment being rendered. (Vilander v. Hawkinson, 183 Kan. 214, 326 P. 2d 273; Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 453 P. 2d 486.) The legislature has provided a statutory declaration of grounds for mistrial in criminal prosecutions in K. S. A. 1973 Supp. 22-3423. The grounds are broad and whether specific instances are included within those grounds is a matter of discretion with the trial court. (State v. Finley, 208 Kan. 49, 490 P. 2d 630, Syl. ¶ 1.) Under the circumstances of this case, we find no evidence of abuse of that discretion. The jury returned to the court during their deliberation to ask for additional information. In response to their questions they were told by the court in defendant’s presence that defendant’s past activities and his punishment if found guilty were not questions before the jury and they were not entitled to any information thereon. After approximately four hours of deliberation, the jury returned four verdicts. They found defendant guilty of possession on both counts and guilty of possession with intent to sell on both counts. In the presence of the defendant, the court instructed the jury to retire again and decide whether defendant was guilty of possession or of possession with intent to sell on each count. He explained that the defendant could not be found, guilty of both the greater and lesser offenses. The defendant, as his second point on appeal, contends the verdict of the jury should be set aside and a new trial ordered because of the apparent confusion of the jury as to its instructions. The record shows the trial court specifically inquired whether there was any objection by either party to any instruction, before or during deliberation, and there was no objection. The court properly instructed the jury before retiring as to the lesser included offense of possession. They were to consider it only if they found defendant not guilty of possesion with intent to sell as charged. Additional instructions were given in the presence of defendant and his counsel without objection. It is our conclusion that the jury’s questions as to matters not before it indicate only curiosity and not confusion as to instructions. The court properly guided the jury back to its task of finding innocence or guilt. Contrary to the court’s instructions, the jury found defendant guilty of both the greater and the lesser included offenses. The court’s further instruction corrected that misunderstanding and left the jury completely free to find defendant guilty of the greater, of the lesser, or of no offense. The defendant further contends the trial court erred in not accepting the jury’s verdicts finding him guilty of the lesser offense of possession. He cites cases to the effect that conviction of a lesser included offense acquits defendant of the greater offense. He also contends he was placed in double jeopardy when the jury was allowed to reconsider its verdict and find him guilty of the greater offense. These arguments are spurious because defendant was never found guilty of the lesser offense. All four vehicles originally rendered were defective because defendant was charged with only two crimes, and the court would have been in error to have accepted any of the four. This court approved correction of defective verdicts in State v. Seidel, 113 Kan. 390, 214 Pac. 565, where we stated: “When various forms of verdict in a criminal case are submitted to a jury, and by mistake they enter a verdict on one of these forms which apparently found the defendant guilty of a misdemeanor when it was obvious that if the jury were honest men they must have intended to find him guilty of a felony, it was not prejudicial error for the trial court to make reasonable comment and inquiry concerning the verdict; and when such comment and inquiry of the court elicited responses from the jury that they had written their verdict on the wrong form and that they did not intend to' convict defendant of a misdemeanor only, it was not error to send the jury back to reconsider and correct their verdict; and when the jury retired and later returned a verdict of guilty of a felony as charged in the information it was not error to receive and enter such corrected verdict and to render judgment thereon.” (Syl. ¶ 1.) The statutes recognize the possibility of a defective verdict and make provision for correcting mistakes with the consent of the jury before it is discharged. (K. S. A. 1973 Supp. 22-3421.) In this case it was the court’s duty to correct the defective verdicts, and it did so by requesting the jury to reconsider. The record discloses the court did not in any way suggest a preference or persuade them toward one or another of the possible verdicts. The court suggested the jury indicate disapproval of two verdicts by scratching out the signature of the foreman, thereby allowing approval of any two of the four verdicts with equal ease. Within five minutes, the jury returned two verdicts finding defendant guilty of possession with intent to sell. The alacrity with which they made their decision indicates they had no difficulty determining defendant was guilty of the greater offense. Defendant did not request that the jury be polled. As his final point on appeal, the defendant contends the verdict was contrary to the evidence and based upon conjecture and inference. The court will not weigh evidence on appeal. The record reveals substantial evidence which, if believed, supports the jury’s finding of guilty. We find no error and the judgment is affirmed.	[ -80, -18, -7, 29, 14, -32, 58, 26, 89, -75, 118, 115, -23, -50, 5, 105, -86, 31, 84, 105, -61, -73, 67, 73, -126, -13, -119, -57, -73, 75, -75, -44, 12, 116, -118, 85, 102, -54, -25, 92, -118, 0, -119, 114, 90, 10, -76, 38, 16, 7, 49, 22, -13, 42, 21, -61, 73, 40, 75, -82, 88, -15, -101, -99, -3, 18, -125, -96, -99, -121, -40, 110, -36, -79, 1, 104, 115, -90, -124, 116, 79, -119, 12, 102, 98, 32, 29, -83, 104, -120, 46, 63, -83, -89, -72, 73, 107, -116, -98, -99, 118, 22, 14, -12, -5, 20, 29, 124, -125, -38, -104, -109, 77, 112, 30, 91, -21, -127, 16, 65, -51, -94, 92, 116, 120, 95, -117, 55 ]
The opinion of the court was delivered by Fromme, J.: The appellant Jim Mahoney, Inc., contracted to build a 64-bed nursing home at Galena, Kansas, under a standard form contract with the appellee, The Galokee Corporation. The contract sum for completion of the project was $179,500.00. The appellant Mid-Continent Casualty Co. furnished the performance bond for the contractor. Construction of the building was begun in February and continued to mid-November, 1969. The building was occupied by The Galokee Corporation in December, 1969, and received approval from the state of Kansas for use as a nursing home. The building has been so used continuously since that time. A dispute arose between Jim Mahoney, Inc., which we will call the contractor, and The Galokee Corporation, which we will call the owner, over failure to complete and construct the building according to the plans and specifications. Suit was filed by the contractor to recover a balance remaining due under the contract. The owner answered and filed a cross-petition claiming the contractor had defaulted by failing to complete construction, by using inferior materials, by providing poor workmanship and by failing to comply with the plans and specifications of the contract. The case was tried to the court and the court made specific findings of fact on which a final judgment was entered after offsetting a $16,215.48 balance found due the contractor against the sum of $58,960.00, which was the amount of repairs found necessary to bring the facilities up to contract specifications. A net judgment of $42,744.52 was entered in favor of the .owner and against the contractor. From this judgment the contractor and its bonding company appeal. The first point raised by appellants, which we need to consider, is that the court accepted and erroneously used evidence of the “cost of repairs” to establish the damages. They argue that, since die trial court found the contractor did not substantially perform its contract on seven specific items, it should have used evidence of “diminution of value” instead of “cost of repairs”. In Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 512 P. 2d 379, the general rule as to measure of damages for breach of contract is stated 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.) Cases are cited by both parties in which this court has accepted evidence of “cost of repairs” to establish a proper measure of damages. (McCullough v. Hayde, 82 Kan. 734, 109 Pac. 176; McCune v. Ratcliff, 88 Kan. 653, 129 Pac. 1167; Big Chief Sales Co., Inc., v. Lowe, 178 Kan. 33, 283 P. 2d 480; Thompson Construction Co. v. Schroyer, 179 Kan. 720, 298 P. 2d 239.) A more recent case approving the use of such evidence to establish a correct measure of damages for breach of a construction contract is Steffek v. Wichers, 211 Kan. 342, 351, 507 P. 2d 274. However, Lofsted v. Bohman, 88 Kan. 660, 129 Pac. 1168; Thomas v. Warrenburg, 92 Kan. 576, 141 Pac. 255; and most of the cases cited in the foregoing paragraph recognize that evidence of “diminution of value” may be accepted under particular circumstances where such evidence will more reasonably establish the true measure of damages set forth in Phillips & Easton Supply Co., Inc. case quoted above. It should be noted that this measure of damages is limited to those damages which 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 a probable result of such breach. Under Article 25 of the present contract the parties provided for default as follows: “If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents or fails to perform any provision of the Contract, the Owner may, after seven days’ written notice to the Contractor and without prejudice to any other remedy he may have, make good such defi ciencies and may deduct the cost thereof from the payment then or thereafter due the Contractor or, at his option, may terminate the Contract and take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor and may finish the Work by whatever method he may deem expedient, and if the unpaid balance of the Contract Sum exceeds the expense of finishing the Work, such excess shall be paid to the Contractor, but if such expense exceeds such unpaid balance, the Contractor shall pay the difference to the Owner." The record in the present case contains substantial and convincing evidence that the contract was not completed and that the contractor failed to fulfill the requirements of the specifications in seven particulars. Regardless of the finding of the trial court that the contractor had not substantially performed the contract the trial court was correct in accepting evidence on the “cost of repairs” to establish the amount of damages suffered. When a building contract has been so far performed that the building is occupied and used by the owner for the purposes contemplated by the contracting parties and where correction or completion would not involve unreasonable destruction of the work done by the contractor evidence of the cost of correcting the defects and completing the omissions will, as a general rule, be a fair measure of the damages. Not only is this rule firmly entrenched in our case law but the parties, in effect, provided for applying the rule in this case by inserting Article 25 in their contract. Where the parties to a construction contract provide drat if the contractor defaults or neglects to carry out the work in accordance with the contract the owner may terminate the contract, take possession of the site and finish the work at the expense of the contractor it may be presumed that evidence of the cost of repairs and work necessary to bring the building up to specifications was reasonably contemplated by the parties as proper to establish the damages which would arise from a breach. The appellant-contractor next contends that, even if evidence of the “cost of repairs” was proper, there was no substantial, competent evidence to support certain specific items of damage which the trial court awarded the appellee-owner. The pertinent findings of the court upon which the judgment was entered are as follows: “6. The Court further finds from all the evidence introduced that the defendant, Galokee Corporation, is entitled to recover on its counterclaim from the plaintiff, Jim Mahoney, Inc., the following amounts to repair the nursing home and its facilities to bring it up to contract specifications: “(a) Fill and level the area................................ $2,500.00 “(b) Bring driveways and parldng to grade, lay base for asphalt . . 1,000.00 “(c) Asphalt driveways and parldng ........................ 3,360.00 “(d) Expansion joints in walls .............................. 2,100.00 “(e) Replace the present roof with a fifteen year bonded roof, per specifications, including expansion joints, insulation and broken trusses ....................................... 42,000.00 “(f) Repair interior of building, replacing tile vinyl base and to replace sheetrock as needed, etc......................... 5,000.00 “(g) Repair exterior of building, including renailing and replacing existing siding as needed, caulking windows and doors, etc., and painting ........................................ 3,000.00 “7. The Court further finds that the plaintiff is entitled to recover from the defendant the balance due on the contract price, in the amount of $16,215.48. “9. The Court, in accordance with the above-stated findings, generally finds in favor of defendant, Galokee Corporation, and against the plaintiff, Jim Mahoney, Inc., and finds the defendant, Galokee Corporation should have judgment against the plaintiff on its counter-claim in the net amount of $42,744.52.” The first of these items of damages challenged by the contractor is the $1,000.00 awarded to bring the driveways and parking to grade and lay a base for surfacing. There was testimony before the court that the driveways and parking area were not up to proper grade and it would cost $500.00 to complete this work. All witnesses for the owner (contractors Lloyd Meyers, Jack Price, and Gus Baldwin) gave a $500.00 figure. Nowhere in the record do we find any testimony to support the $1,000 figure allowed by the trial court. We find that said judgment against the contractor should be reduced on said item to $500.00. In Venable v. Import Volkswagen, Inc., 214 Kan. 43, 519 P. 2d 667, it is held the trier of fact should not be allowed to merely speculate in arriving at damages and it is said: “. . . One who claims damages on account of a breach of contract must not only show the injury sustained, but must also show with reasonable certainty the amount of damage suffered as a result of the injury or breach. (Johnston v. Lanter, 98 Kan. 62, 65, 157 Pac. 266.) In order for the evidence to be sufficient to warrant recovery of damages there must be some reasonable basis for computation which will enable the jury [or trier of fact] to arrive at an approximate estimate thereof. [Citations omitted.]” (p. 50.) When findings on specific items of damage are used by the trier of fact to arrive at the total amount of the judgment these findings on specific items of damage control the amount of the total judgment and if one or more of the special findings are not supported by substantial competent evidence the amount of the total judgment should be corrected accordingly on appeal. (Kiser v. Phillips Pipe Line Co., 141 Kan. 333, 41 P. 2d 1010; Thompson Construction Co. v. Schroyer, supra; Venable v. Import Volkswagen, Inc., supra.) We do not forget our role as an appellate court in examining appellants’ contentions. This court searches the record for the purpose of determining whether there is any competent evidence to support the special findings and judgment. If so this court will not weigh the evidence. Findings of fact determined on conflicting evidence will be held conclusive. Kramer v. Farmers Elevator Co., 193 Kan. 438, 393 P. 2d 998; Winn v. Sampson Construction Co., 194 Kan. 136, 142, 398 P. 2d 272.) Appellants’ next contention is directed to the $3,360.00 allowance for damages for the amount it would cost to asphalt the driveways and parking. They argue that the allowance was erroneous because the contract did not call for asphalt, that the contract called for a cheaper process using a four inch gravel base, sealed and oiled with chips applied and rolled. It appeal’s to be agreed that this cheaper process would have cost only $1,050.00, but because of soil conditions it could not be satisfactorily used. In Plaintiffs Exhibit 6, upon which the trial court found the balance due the contractor to be $16,215.48, credit was allowed the owner in the sum of $1,059.00 for this item. The confusion over the type of surfacing arose by reason of apparent conflicts between tire plans and drawings and the contract itself which incorporated the plans, drawings and specifications by reference. Plaintiff’s Exhibit 3 at page 1 is a schematic drawing of the location of the building, driveways and parking area showing the grade elevations. On this drawing underneath the various areas designated as driveways and parking we find the word “asphalt” in parenthesis. We find nothing in the specifications regarding the type of construction for driveways and parking. However, the formal contract signed by the parties (Plaintiffs Exhibit 1) contains the following statement on page 7: “Parking and drives to be 4" gravel base, sealed and oiled, chips applied and rolled.” We are confronted with a question of construction of the total contract where there is a conflict between the plans and drawings and the formal signed contract. Here the plans and drawings are referred to and made a part of the contract. In 13 Am. Jur. 2d, Building, Etc. Contracts, § 12, pp. 15, 16, it is said: “It is generally held that where a building contract refers to the plans and specifications and so makes them a part of itself, the contract is to be construed as to its terms and scope together with the plans and specifications. Where the plans and specifications are by express terms made a part of the contract, the terms of the plans and specifications will control with the same force as though physically incorporated in the very contract itself. . . .” However, where there is a conflict between, or an inconsistency in, the provisions of a building contract and the provisions of the plans and specifications, the positive language of the contract should prevail. This rule is stated in the first paragraph of the syllabus of Cruthers v. Donahue, 85 Conn. 629, 84 A. 322, as follows: “When a building contract is accompanied by plans and specifications which are referred to in the contract and made a part thereof, the specifications cannot, in the absence of express provision to that effect in the contract, restrict the scope of the contract or extend it to subjects other than those covered by the terms of the contract. The specifications serve the purpose of explaining and amplifying, but not of adding to, the provisions of the contract. In case of conflict in terms, the contract prevails over the specifications.” (See also Brown-Randolph Co. v. Gude, 151 Ga. 281, 106 S. E. 161; Wilson v. Keefe, 150 C. A. 2d 178, 309 P. 2d 516; Perry v. United States, 146 F. 2d 398 (5 C. A.); and 13 Am. Jur. 2d, Building, Etc. Contracts, § 12, p. 16.) Applying this general rule the contract provision controls, chips and oil were required, and proper allowance of $1,050.00 was made before arriving at the balance due the contractor as set forth in Plaintiffs Exhibit 6. The allowance of $3,360.00 for placing an asphalt surfacing on the driveways and parking was erroneous and the judgment should be reduced accordingly. The next item for repairs allowed by the trial court which appellants contend is wholly unsupported by evidence is the $2,100.00 for expansion joints in the interior walls. We have carefully reviewed the evidence in the record and there is plenty of testimony that expansion joints were necessary, required and omitted. However, there is a total absence of any evidence as to the cost of such installation and repair. We cannot find a basis in the evidence for the $2,100.00 allowance and the judgment should be reduced accordingly. The next item is for $42,000.00 to cover the cost of replacing the total roof with a fifteen year bonded roof including expansion joints, insulation and double trusses as called for in the specifications. There was much testimony concerning the inadequacies of the roof. The plans and specifications called for double trusses to support the roof in key areas. Single trusses were used, some of these single trusses broke during construction and were not replaced. Instead of replacement they were patched. As a result the roof sagged and water collected in the low places. The employees of the nursing home were kept busy during every rain placing buckets to catch the rain water which leaked through the roof. Appellants call attention to testimony of their witnesses that the roof could be repaired for varying amounts between $4,350.00 and $10,006.00. The simple fact remains the trial court chose to accept the testimony of contractor Baldwin and the other witnesses to the effect that a total roof was required with expansion joints, insulation and trusses at a cost of from $42,000.00 to $47,500.00. There is competent evidence to support the special finding of the trial court as to the $42,000.00 and such finding of fact, determined on conflicting evidence, is conclusive. Appellants attack the special finding of the trial court of $5,000.00 for the cost of repairs to the interior of the building to replace the tile vinyl base and the sheetrock in certain areas. Again we have searched the record and the only dollar value for such repairs to the interior of the building appears in the testimony of Lloyd Meyer. The figure given in his testimony is $4,500.00 and the allowance by the trial court of $5,000.00 is excessive and must be reduced to $4,500.00. The next item of repairs questioned by appellants is a $3,000.00 figure allowed for repairs to the exterior of the building, such as renailing and replacing some of the existing siding, caulking the windows and doors and repainting. A search of the record indicates plenty of testimony that these repairs were needed but no dollar value can be found upon which to base that amount of damage. Accordingly the amount of $3,000.00 allowed is erroneous since this dollar figure is not supported by competent evidence and the judgment must be reduced accordingly. The final contention of appellants concerns the refusal of the trial court to credit the contractor with $1,910.00 received by the owner, The Galokee Corporation, on a property insurance policy for hail damage to the roof. Appellants cite no cases to support their contention and we know of none. The air conditioning units were installed on the roof of this building and a portion of the hail damage was attributable to those units apart from, the roof itself. The owner had insured the building against such losses and paid a premium for the policy. This was entirely separate and apart from any contract obligation it had with the contractor. We see no reason in justice or equity why the contractor should receive the benefit from the premium paid by the owner when such loss is attributable to hail damage to the roof. The contract of insurance was entered into sometime after the contractor had breached its agreement. The case of Anderson v. Rexroad, 180 Kan. 505, 306 P. 2d 137, has not been overlooked. In that case there were two contracts in existence protecting the same property from fire damage before the loss occurred. The court applied the collateral source rule. The property owner was permitted to collect the whole of his loss but only part of the loss was received from the insurance company and the balance was received from the maker of the third party beneficiary contract. Both of these contracts were in effect for the protection of the property owner prior to the occurrence of the fire. The third party beneficiary contract was an indemnity contract limiting liability to the actual loss sustained by the property owner. The case is not applicable under the facts of our present case. In summary we hold that evidence of the cost of repairs does establish a proper measure for damages for breach of contract under the facts and circumstances of this case and that the trial court’s findings on the specific amounts for repair of the nursing home and its facilities based upon competent evidence in the record should be and the same are hereby corrected as follows: 1. Fill and level the area......................... $2,500.00 2. Bring driveways and parking to grade and lay base for asphalt................................... 500.00 3. Asphalt driveways and parking................. -0- 4. Expansion joints in walls....................... -0- 5. To replace the present roof with a fifteen-year bonded roof per specifications, including expansion joints, insulation and broken trusses............. 42,000.00 6. To repair interior of building replacing tile vinyl base and to replace sheetrock as needed, etc...... 4,500.00 7. To repair exterior of building, including renailing and replacing existing siding as needed, caulking windows and doors, etc. and painting........... -0- Total ...................................... $49,500.00 Accordingly after subtracting the balance due plaintiff, Jim Ma-honey, Inc., on the contract of $16,215.48 from the total cost of repairs, the net judgment in favor of defendant and against the plaintiff is hereby corrected on the counter-claim to a net amount of $33,284.52. 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The opinion of the court was delivered by Foth, C.: This is a family dispute in which two sisters are pitted against two brothers over the terms of their mother’s will. The ultimate issue is whether the two brothers have forfeited the right to exercise an option, granted to them by the will, to purchase at a discount 180 acres of Washington county farm land owned by their mother at the time of her death. The testatrix, Emma M. Wurtz, was survived by two sons and three daughters. The sons, Ralph J. Wurtz and Herman J. Wurtz, are the appellees. Two of the daughters, Geraldine Meyer and Vemus Lange, are the appellants. The third daughter, Marie Hartman, has taken no part in this litigation. Mrs. Wurtz died on May 7, 1970, leaving a four-paragraph will. In the first she directed payment of her debts and funeral expenses. In the second, she described her real estate (the 180 acres in question, consisting of three separate parcels, but also erroneously including a quarter section in which she held only a life estate). In the same paragraph she went on to provide: “It is my will that Ralph J. Wurtz and Herman J. Wurtz shall have an option for the period of six months from the date of my death to purchase all of the real property owned by me, including the above described real property, for the appraised value thereof, less a deduction of the sum of One Thousand Dollars ($1,000.00), and if said option is exercised said Ralph J. Wurtz and Herman J. Wurtz shall file a statement in the Probate Court of Washington County, Kansas, within said period of time that they have exercised said option, and after the filing of said statement the said Ralph J. Wurtz and Herman J. Wurtz shall have an additional period of six months in which to pay the purchase price for said real property. If the said Ralph J. Wurtz and Herman J. Wurtz do not exercise said option then they shall sell said real property as Executors and the purchase price shall become a part of the assets of said estate.” The third paragraph gave the residue of the estate to the five children equally. The fourth named Ralph and Herman as executors. After the will was probated and the executors qualified, the next step was the selection of appraisers. The subject was discussed at a family meeting at which all the children and their respective spouses were present. The brothers, as executors, were represented at this stage by Robert H. Meyer, a Mankato attorney and the husband of their sister, the appellant Geraldine Meyer. A suggestion that one of the appraisers be a real estate broker was rejected, and the family settled on three neighboring farmers who were friends of the family and familiar with the land. The three so chosen were later suggested to and appointed by the probate court. At this meeting Robert Meyer, the attorney, was asked whether the appraisers should be shown the will. His reply was, “I don’t care whether they are shown the will or not, but they should be instructed this isn’t the ordinary appraisement, if they get it too high the boys are going to be hurt, and if they get it too low the girls are going to be hurt, and tell them to do the job of putting it right where they think the market value was on the date of her death.” The present difficulty arose when, on July 20, 1970, the appraisers returned a total valuation of $27,000 for the 180 acres. This struck the girls as somewhat low. There followed another family meeting at which the appraisal figure was discussed, along with the suggestion that a new appraisal be secured. At this meeting, as a means of settling the question without a formal reappraisal, there developed an informal bidding session, with Ralph and Herman vying against each other for the right to purchase the 180 acres. The bids had reached $36,500 when the question of the other quarter-section was raised. This was the quarter in which the testatrix had only a life estate, and which had devolved upon tire five children equally upon her death; Herman wanted to know if he could buy it for $20,000. The interjection of this new issue brought the bidding to a halt, and the meeting broke up without an agreement of any kind being reached. On October 5, 1970, Ralph wrote to his sister Geraldine and her husband Robert Meyer saying, “I have been waiting on some land of answer regarding your pricing on the farm or farms. Our time is getting short. “I hate to think what will happen after the six months are over, sentiments are getting at low ebb, I am not admitting names. “I wish we could close things in a honest face to face deal, and try to safe [sic] for the estate what I think will gradually will be thrown away. “I am willing to give what I have offered on the home place, which was a lot more th[a]n appraise valuation, and their [sic] is no question about the level head gentlemen that did the job. Their [sic] is no question that their appraisal will stand as quoted and could be used as our buying power.” There was apparently no response to this letter. Three days later Ralph and Herman executed a document containing an election to exercise their option to purchase, prepared by their present counsel. The trial court made a finding, disputed in this court and discussed later, that this document was filed in the probate court the same day, October 8,1971. The next family gathering was at Thanksgiving, when some 40 to 50 gathered for dinner at the Langes’. There was no discussion of the estate at this affair, and the family was apparently still on relatively amicable terms. In January, however, the storm broke. The family was summoned to a meeting at Herman’s house on January 24, 1971, and the girls were there advised that since no agreement had been reached the boys were going to take the 180 acres for $26,000, that being the appraised value less $1,000 as provided in the will. Five days later this suit was instituted. The original petition filed in the probate court is not in the record, but the district court findings contain an uncontested recitation that what it prayed for was the appointment of new appraisers. Appellees advise us in their brief that the probate court refused to vacate the original appraisal, and that refusal was appealed to the district court. In addition, certain other contested matters were transferred to the district court, apparently involving an accounting for debts alleged to be owed by Ralph and Herman to tiheir mother at the time of her death. (This latter issue was withdrawn from the district court’s consideration, and is of no further concern.) The district court filed a pre-trial order which recited that it superseded the pleadings, and specified the relevant issues of law and fact to be determined as follows: “a. What are the rights of the parties under the Will of Emma M. Wurtz, dated July 19, 1961; “b. Did the Executors return a complete inventory of all of the property of Emma M. Wurtz; “c. Did the appraisers appraise the real estate belonging to the estate of Emma M. Wurtz at its full and fair value as of the date of her death; “d. If not, what was the full and fair value of said real estate as of the date of death of decedent; . . .” The case was tried to the court, which made the following pertinent findings of fact: "4. The integrity and good faith of the appraisers, above named, is unquestioned. However, the return of the appraisement did not reflect the full and fair value of said real estate as of the date of death of Emma M. Wurtz, deceased. “5. It was the intention of the testatrix, according to the 2nd Paragraph of her Will, that Ralph J. Wurtz and Herman J. Wurtz have the privilege of purchasing certain real estiate for $1,000.00 less than the full and fair value. The return of the appraisement by the appointed appraisers did not accomplish this intent. “6. Ralph J. Wurtz 'and Herman J. Wurtz filed with the Probate Court of Washington County, Kansas, their statement to take real estate under the provisions of the Will on October 8, 1970. “7. January 29, 1971, appellants filed their petition in the Probate Court of Washington County, Kansas, praying for appointment of new appraisers. R'alph J. Wurtz and Herman J. Wurtz have not paid into court any sum of money as provided by the 2nd Paragraph of the Will of Emma M. Wurtz, deceased. However, on May 6, 1971, they filed their petition asking the option be continued. “8. Upon the filing of the petition for appointment of new appraisers and the appeal from the ruling of the Probate Court, there was no criterion for Ralph J. Wurtz and Herman J. Wurtz to base the amount of money to be paid into Probate Court in accordance with the 2nd Paragraph of said Will heretofore mentioned. In the event a new appraisement was to be filed, the amount of money which they would have paid in would have been incorrect, and technically they would still have been in violation of said 2nd Paragraph.” In its conclusions of law the trial court found that ihe original inventory and appraisement was void, and set it aside. It directed a new appraisal, and in an amendment to its order appointed three persons to conduct such appraisal. It also found: “3. Ralph J. Wurtz and Herman J. Wurtz have, as far as possible, complied with the conditions contained in the 2nd Paragraph of said Will, and appellants are estopped from claiming non-compliance. “4. It is the further order of the Court that Ralph J. Wurtz and Herman J. Wurtz have a reasonable time after the filing of the inventory, as herein provided, to exercise their rights under the 2nd Paragraph of said Will.” In their appeal to this court the girls first challenge the trial court’s finding that the boys’ election to purchase was filed on October 8, 1970. They contend that there is no competent evidence to support such a finding, and would conclude that by failing to make their election within the time specified the boys have forfeited their option. The document itself, found in the vault of the probate court, bore the typewritten notation “Case No. 6783, Estate of Emma M. Wurtz, Dec’d, Option to Take Real Property Under Terms of Will, Filed October 8, 1970.” The probate court is a court of record (K. S. A. 1973 Supp. 59-301). “One of the essential characteristics of a court of record is that there is a strong presumption as to the veracity of its records. . . .” (20 Am. Jur. 2d, Courts, § 55. Cf., Goetz v. Hand, 185 Kan. 788, 347 P. 2d 349, Syl. ¶ 3; O’Driscoll v. Soper, 19 Kan. 574.) Thus the recital alone was prima facie evidence of the filing date. In addition, both Ralph and Herman testified to signing the election in their attorney’s office. While neither remembered the exact date, both were sure it was before the six months option period was up, which would have been November 7, 1970. There is nothing to suggest any reason for counsel to hold the document in his office rather than promptly file it. While the evidence of the filing left something to be desired, we believe it was sufficient to support the trial court’s finding. There was, no doubt, evidence from which the trial court could have made a contrary finding. Appellants point in particular to a letter dated January 7, 1971, in which the probate judge pro tern, advised Robert Meyer that no papers had been filed in the estate after the filing of the notice of appointment of executors on July 17, 1970. Had the election been on file, they say, the judge pro tem. would have said so. However, the force of this evidence was severely impaired by the fact that the “inventory and appraisement” was undoubtedly filed on July 20, 1970, yet it was not mentioned in the letter either. In any event, it was the function of the trial court to weight the evidence and resolve any conflicts. It has done so, and we are not at liberty to reweigh the evidence on appeal. Rymph v. Derby Oil Co., 211 Kan. 414, 507 P. 2d 308, Syl. ¶ 3; Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 500 P. 2d 39, Syl. ¶¶ 1 and 2. Appellants next contend that, even assuming the election was timely filed, the boys forfeited their right under the option by not paying into court the $26,000 called for within six months of such filing, which would have been April 8, 1971. They assert that the will imposed an absolute duty to pay within that time, despite the fact that since January 29, 1971, this litigation had been pending in which they were vigorously contending that such a payment would be inadequate and would not comply with the terms of the will. In support of their contention appellants cite cases dealing with conditional devises, involving such questions as whether a condition is one “precedent,” whether it imposes a “charge” upon the land, and whether there is a “gift over” if the condition is unfulfilled. As we see it, those cases are inapposite here. Mrs. Wurtz made no devise of her land to anyone; she directed a sale of the land in any event, and made a gift of the net proceeds. She did, however, extend an option to her two sons to purchase the land, for a price to be determined by the appraisers of her estate. Viewed in this light, the rights of the parties must be determined according to the rules applicable to option contracts, not devises of real estate. A few of these well established rules will be sufficient to establish the propriety of the trial court’s conclusion on this issue: First, “Courts abhor forfeitures, and will resort to any reasonable rule of construction to avoid them.” (Cue v. Johnson, 73 Kan. 558, 85 Pac. 598, Syl. ¶ 1.) Put another way, “Forfeitures are not to be treated with courtesy, but with only such tolerance as strict legal considerations require.” (Wilson v. Begshaw, 108 Kan. 543, 546, 196 Pac. 605.) In particular, “where the enforcement of the forfeiture provisions of a contract for the sale of land would be inequitable the forfeiture wilj, not be decreed.” (Reger v. Sours, 181 Kan. 423, 427, 311 P. 2d 996.) Hence the trial court properly applied equitable principles and sought a course which would not unnecessarily work a forfeiture of the appellees’ rights under the option. Second, “A tender or demand otherwise indispensable is no longer required when its futility is shown.” (Gardner v. Spurlock, 184 Kan. 765, 339 P. 2d 65, Syl. ¶4.) And, “where the exercise of an option contemplates tender of the purchase price as a part of the acceptance, repudiation of the contract by the optionor, in the face of readiness, willingness and ability to conform on the part of the optionee excuses tender during the time limit of the contract and entitles the optionee to all available remedies including specific performance.” (Id., p. 772.) Under these principles it was not required that Ralph and Herman pay in the $26,000. The appellants had for practical purposes assumed the roles of optionors vis-a-vis the boys as optionees. They had repudiated the contract in an anticipation of any tender, indicating by the very institution of this suit that any such payment would not satisfy them. Under these circumstances the appellees were not required to make a futile gesture in order to preserve their rights under the option. Third, “There is a well-recognized rule, ‘That one who prevents a thing may not avail himself of the nonperformance which he has occasioned.’” (Fourth Nat'l Bank v. First Presbyterian Church, 138 Kan. 102, 105, 23 P. 2d 491.) The amount to be paid for the land depended on the “appraised value.” So long as this litigation was pending, that value was an unknown quantity. This suit was instituted for only one ostensible purpose, and that was to set aside the first determination of appraised value as void. It was the pendency of this suit which effectively prevented the appellees from strictly complying with the terms of the option. Hence appellants, who had instituted the litigation, were estopped from claiming any advantage from their own action and the trial court correctly so held. Appellants complain of the application of this last rule because “estoppel” is an affirmative defense, and was not specifically pleaded. The difficulty with that position is that when the case came before the district court all the prior pleadings were discarded in favor of the pre-trial order. In that order the sole issue of law was “What are the rights of the parties” under the will. It was under this broad, generalized issue that appellants asserted their own claims: first, that the election wasn’t timely filed, and second, that failure to pay in worked a forfeiture — neither of which was pleaded. If it was broad enough to encompass those two distinct claims, both newly raised in the district court, it was surely broad enough to permit the court to find an estoppel. Finally, appellants assert that the trial court should itself have determined the “full and fair value” of the real estate, rather than merely appoint new appraisers. It is true that the pre-trial order listed such value as an issue to be determined, but on reconsideration the trial court concluded on its own initiative that it had no jurisdiction to appraise an estate itself. Appellants cite us no authority, statutory or otherwise, for their position to the contrary. The district court, in its first conclusion of law, declared the original appraisement “void” and set it aside. None of the parties have appealed from this order, and it is final. The estate at that point stood as if no appraisement had ever been made. The applicable statute, K. S. A. 1973 Supp. 59-1202, requires that the appraisement of estate property be made by three distinterested appraisers to be appointed by the court. Nowhere do the statutes authorize the court to make its own appraisement; a probate court which presumed to do so in the first instance would be overreaching its authority. We therefore conclude that the trial court correctly resolved this issue by the appointment of new appraisers. Certainly appellants can shown no prejudice from this cotuse. In the final analysis, appellants have been awarded just what they originally sought — a new appraisement of the real estate. They have been properly denied the fortuitous fruits of forfeiture because it was their own action which prevented appellees from strictly complying with the terms of the option. There is no error and the judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Fontron, J.: Shirley Steele brings this action on behalf of herself and her six young children against Marvin E. Latimer, their landlord, seeking to recover rent paid, to recover damages and to enjoin violation of the Wichita Housing Code. We shall refer to the parties either as plaintiffs and defendant, or by name. The trial court, hearing the case without a jury, ruled that Shirley Steele was the only proper party plaintiff; that the defendant had violated the implied covenant of quiet enjoyment in failing to repair a broken water main; and that plaintiff was entitled to $102 damages for breach of that covenant. The court rejected all other relief sought. The plaintiffs have appealed, alleging various errors. A question of first impression is presented so far as this court is concerned: Is a warranty of habitability to be implied in the rental of urban residential property? The trial court gave a negative answer to this question and herein lies the issue most vigorously pressed and contested in this lawsuit. As to the facts: When the Steele family outgrew the two bedroom habitation it had been occupying, a search was initiated for larger quarters. The quest for a roomier residence eventually came to an end when an available three bedroom house, owned by Mr. Latimer, was found at 3138 Ethel. After Shirley had seen the house she and her family moved into their new home on the basis of a month to month oral lease at a monthly rental of $105. The date was November 1,1971. As of January 1, 1972, the defendant undertook to raise the rent $5 per month and Shirley betook herself to the Wichita Legal Aid Society, where she complained not only of the raise in rent but also of the condition of the premises which she said were inadequately heated and lacked a number of locks. Two letters from the Legal Aid Society to Latimer followed Shirley s visits to the society, as did a trip to the Steele home by a city building inspector who noted various deficiencies in the property. When no acceptable response was received from Mr. Latimer, the instant action was filed on March 24, 1972. In their petition, the plaintiffs asked for injunctive relief and prayed for monetary judgments as follows: $315 for return of rents paid; $1700 total personal damages, $500 for Shirley and $200 for each of the six children; and $1000 punitive damages. The action was premised on three legal theories: (1) breach of an implied warranty of habitability, (2) negligence in faffing to comply with the Wichita Housing Code, and (3) maintaining a nuisance. Although the trial court entered judgment in favor of the defendant, with the exception of the $102 damages resulting from the broken water line, the court nevertheless found a number of defects and faults in the house: excessive air leakage around the front door and the windows due in part to inadequate repair and in pail to the type of windows built into the structure; a counter top next to the sink in bad state of repair presenting an unsanitary condition, hazardous to health; tile on the bathroom floor needing repair and presenting an unsanitary condition; and considerable wear, tear and depreciation. In addition, the trial court found the house did not meet the standards of the Wichita Housing Code then in effect, although its generally dilapidated condition was obvious to Shirley at the inception of and throughout the tenancy. The trial court also entered the following pertinent conclusions: “2. That under the settled law of the State of Kansas there is no implied warranty of habitability existing in the landlord-tenant relationship. “3. That if there was such an implied warranty of habitability that in this case plaintiff would be entitled to recover because the conditions of the house are such that it does violate the principle or theory of implied warranty of habitability.” As tending to support that portion of the trial court’s judgment entered in his favor, the defendant relies on and directs our attention to the decision of this court in Bailey v. Kelly, 93 Kan. 723, 145 Pac. 556, in which the court quotes from 2 Cooley on Torts, 3d ed., p. 1276: “ "The mere letting without additional stipulations by the lessor, simply implies that he holds the title and that the lessee shall quietly enjoy the use and occupation during his tenancy; and not that the premises are or shall be in any particular condition or state of repair, or that they are suitable for the purpose for which they were let/ ” (pp. 729, 730.) Continuing its opinion in that case, the court said that a landlord owes no duty to a prospective tenant except not to entrap him by concealing facts which an ordinary inspection would not disclose, even though the buddings might otherwise be in a tumble-down, uninhabitable or unsafe condition for use. From a factual standpoint the Bailey case is so dissimilar from the instant action that we view it as being readily distinguishable and as having little if any precedential value under the instant circumstances. 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 constiutional and statutory law, judicial decisons, 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. (Isley Lumber Co. v. Kitch, 123 Kan. 441, 445, 256 Pac. 133.) We find our viewpoint adequately expressed in 15 Am. Jur. 2d, supra, p. 797: “The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs of the times has not so changed as to make further application of it the instrument of injustice. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is .in harmony with those conditions and meets the demands of justice.” In recent years there has been a noticeable trend among courts in this country to recognize an implied warranty on the part of the lessor of urban residential property that the premises leased by him are suitable for human habitation and will be maintained in suitable condition throughout the duration of the tenancy. Among the growing number of authorities adhering to this view are Lemle v. Breeden, 51 Haw. 426, 462 P. 2d 470; Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 280 N. E. 2d 208; Javins v. First National Realty Corporation, 428 F. 2d 1071; Foisy v. Wyman, 83 Wash. 2d 22, 515 P. 2d 160; Berzito v. Gambino, 63 N. J. 460, 308 A. 2d 17; and Hinson v. Delis, 26 Cal. App. 3d 62, 102 Cal. Rptr. 661. Usages, customs and patterns in housing practices have undergone dramatic change since the common law rules respecting landlord-tenant relationships were developing in feudal England. Dwelling habits fashioned under the agrarian atmosphere of those far-off times are hardly suitable for congested urban settings. Under the tenurial system a lease was primarily considered to be the conveyance or transfer of an interest in realty. The value to the tenant lay mainly in the land itself, the buildings being considered for the most part as incidental to the lease. Dwellings were ordinarily of simple construction, without today’s modem conveniences and mechanical gadgets, and could easily be kept in repair by the tenant himself. (Marini v. Ireland, 56 N. J. 130, 265 A. 2d 526; Kline v. Burns, 111 N. H. 87, 276 A. 2d 248.) The feudal concept that a lease is simply the sale or conveyance of an interest in land (Javins v. First National Realty Corporation, supra; Lemle v. Breeden, supra.) has given way to the more realistic view that a lease is essentially a contract. In Dutton v. Dutton, 122 Kan. 640, 253 Pac. 553, this court has said: “Landlord and tenant is a phrase used to denote the familiar legal relation existing between the lessor and lessee of real estate. The relation is contractual and is constituted by a lease or agreement therefor of lands for terms of years; from year to year, for life or at will. . . .” (pp. 641, 642.) The relationship of landlord and tenant being contractual in character, it follows that mutually dependent rights and obligations arise therefrom, binding alike on lessor and lessee. (Lemle v. Breeden, supra.) The mutuality of the contractual relationship is pointed up in Foisy v. Wyman, supra, where the Supreme Court of that state said: ". . . Any realistic analysis of the lessor-lessee or landlord-tenant situation leads to the conclusion that the tenants promise to pay rent is in exchange for the landlord’s promise to provide a livable dwelling.” (p.--) The economic realities of today, in contrast to those which prevailed in the less complex baronial area of the middle ages, are reflected in the often quoted language of Judge J. Skelly Wright, speaking in Javins v. First National Realty Corporation, supra: ". . . Today’s urban tenants, the vast majority of whom live in multiple dwelling houses, are interested, not in the land, but solely in ‘a house suitable for occupation.’ Furthermore, today’s city dweller usually has a single, specialized skill unrelated to maintenance work; he is unable to make repairs like the ‘jack-of-all-trades’ farmer who was the common law’s model of the lessee. Further, unlike his agrarian predecessor who often remained on one piece of land for his entire life, urban tenants today are more mobile than ever before. A tenant’s tenure in a specific apartment will often not be sufficient to justify efforts at repairs. In addition, the increasing complexity of today’s dwellings renders them much more difficult to repair than the structures of earlier times. In a multiple dwelling repair may require access to equipment and areas in the control of the landlord. Low and middle income tenants, even if they were interested in making repairs, would be unable to obtain any financing for major repairs since they have no long-term interest in the property, (pp. 1078, 1079.) Earlier in. the same opinion Judge Wright pointed out: ". . . When American city dwellers, both rich and poor, seek ‘shelter’ today, they seek a well known package of goods and services — a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.” (p. 1074.) In discussing the housing problems with which todays urban populations are confronted, the Wisconsin Supreme Court in Pines v. Perssion, 14 Wis. 2d 590, 596, 111 N. W. 2d 409, 412, phrased the situation this way: “. . . To follow the old rule of no implied warranty of habitability in leases world, in our opinion, be inconsistent with the current legislative policy concerning housing standards. The need and social desirability of adequate housing for people in this era of rapid population increases is too important to be rebuffed by that obnoxious legal cliché, caveat emptor. Permitting landlords to rent ‘tumble-down’ houses is at least a contributing cause of such problems as urban blight, juvenile delinquency, and high property taxes for conscientious landowners.” Building codes are common today in many urban centers throughout the United States and the modern weight of authority in this country appears to be that the minimum standards embraced within a housing ordinance, building code or other municipal regulation are to be read into and will be implied by operation of law in housing contracts. (Kline v. Burns, supra; Pines v. Perssion, supra; Javins v. First National Realty Corporation, supra; Boston Housing Authority v. Hemingway, _ Mass. _, 293 N. E. 2d 831.) The rule is stated in Mease v. Fox, 200 N. W. 2d 791 (Iowa), where the court, after relating the circumstances of the case and after discussing legal authorities rejecting the doctrine of caveat emptor as applied to rental of urban properties, went on to say: “Under these circumstances we hold the landlord impliedly warrants at the outset of the lease that there are no latent defects in facilities and utilities vital to the use of the premises for residential purposes and that these essential features shall remain during the entire term in such condition to maintain the habitability of the dwelling. Further, the implied warranty we perceive in the lease situation is a representation there neither is nor shall be during the term a violation of applicable housing law, ordinance or regulation which shall render the premises unsafe, or unsanitary and unfit for living therein. Brown v. Southall Realty Co., 237 A. 2d 834 (D. C. App. 1968); Marini v. Ireland, 56 N. J. 130, 265 A. 2d 526 (1970).” (p. 796.) In similar vein the Illinois Supreme Court spoke in Jack Spring, Inc. v. Little, supra: “We find the reasoning in Javins persuasive and we hold that included in the contracts, both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code. . . .” (p. 366.) As indicated earlier in this opinion the Wichita Housing Code, duly adopted by Ordinance No. 27-902, was in full force and effect at all times material to this action. The Code is broad and compre-* hensive in its outreach; it sets basic standards to be met by city housing and requires lessors and lessees to meet the same as provided therein; it provides for inspections, notices of violations and procedures for conducting hearings and appeals; and it provides criminal penalties for violating the act. The trial court found that the house at 3138 Ethel did not meet the standards set by the Wichita Housing Code in that (1) the windows and front door were not reasonably tight; (2) that there was excess air leakage; and (3) the cabinet top and bathroom floors were unsanitary and dangerous to health. Under familiar legal principles the provisions of the city’s housing code relating to minimum housing standards were by implication read into and became a part of the rental agreement between Shirley Steele and Marvin E. Latimer. The pertinent rule of law is summarized in 17 Am. Jur. 2d, Contracts, § 257, pp. 654-656: “It is a general rule that contracting parties are presumed to contract in reference to the existing law; indeed, they are presumed to have in mind all the existing laws relating to the contract, or to the subject matter thereof. Thus, it is commonly said that all existing applicable or relevant and valid statutes, ordinances, regulations, and settled law of the land at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention. . . See, also, Edwards v. United States, 215 F. Supp. 382 (D. C. Kansas); Rankin v. Ware, 88 Kan. 23, 127 Pac. 531; Anno. 110 A. L. R., Contract — Municipal Ordinance as Element, pp. 1048, et seq. Where a breach of an implied warranty of habitability has occurred traditional remedies for breach of contract are available to the tenant, including the recovery of damages. In King v. Moorehead, 495 S. W. 2d 65 (Mo. App.) the court sets forth tire governing rule: “. . . Under contract principles a tenant’s obligation to pay rent is dependent upon the landlord’s performance of his obligation to provide a habitable dwelling during the tenancy. ... A more responsive set of remedies are thus made available to the tenant, the basic remedies for contract law, including damages, reformation and rescission. . . .” (pp. 75, 76.) On the question of damages, see, also, Mease v. Fox, supra; Kline v. Burns, supra; Lemle v. Breeden, supra. The judgment entered in this case by the trial court is affirmed insofar as the recovery of $102 for breach of implied warranty of quiet enjoyment is concerned, but the judgment is otherwise reversed, and the cause is remanded for trial on the issue of damages sustained by the plaintiffs which have proximately resulted from the defendant’s breach of implied warranty in failing to maintain the premises in compliance with the standards set by the Wichita Housing Code. It is so ordered. Schroeder, J., dissenting.	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Ter Curiam: This is an appeal in a damage action wherein Ambrose Heim (plaintiff-appellant) sustained injuries alleged to have been caused by the negligence of Donald Werth (defendantappellee), while Heim was a passenger in Werth’s automobile. Only simple negligence was alleged in the petition, and the trial court sustained defendant’s motion for summary judgment on the ground that the plaintiff was a “guest” — that the guest statute, K. S. A. 8-122b, applied. The sole question is whether the record before the trial court was sufficient to declare the plaintiff a guest as a matter of law. In Smith v. Engel, 206 Kan. 298, 299, 300, 477 P. 2d 937, we said: “Summary judgment may he entered as a matter of law for the moving party under K.S. A. 60-256 (c) if 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. “. . . It has been said before summary judgment is granted the court must be convinced that the issue is not genuine or that there are only immaterial or imaginery factual issues. . . .” Also, see, Vaughn v. Murray, 214 Kan. 456, 521 P. 2d 262. There was evidence showing the plaintiff and the defendant were working on the same project for the same employer at Smith Center, Kansas, located 135 miles from Salina, where the parties resided. Defendant began work on April 10, 1972, and the plaintiff began on April 17, 1972. The day before the plaintiff started working he called the defendant and stated there was no need to use two cars. The defendant then said he would drive his car and plaintiff stated he would compensate the defendant. Plaintiff rode to Smith Center with defendant on Monday, April 17. The plaintiff did not have occasion to ride with the defendant on the following Friday or Monday. However on Friday, April 28, the plaintiff rode with the defendant to Salina and when they reached Salina, the plaintiff paid the defendant $3. The plaintiff claimed it was for the cost of gasoline. Defendant said he would drive next week. On Monday, May 1, on the way to Smith Center, the accident occurred. Plaintiff and defendant were not personal friends nor did they socialize. The sole purpose of the ride was the business of getting to and from work. In Bedenbender v. Walls, 177 Kan. 531, 538, 280 P. 2d 630, while holding the guest statute applied, we said, “There was no relationship of mutual benefit between or among them other than of a social nature”. Here there are other benefits, and the relationship was not of a social nature. (See, Rothwell v. Transmeier, 206 Kan. 199, 203, 477 P. 2d 960; Rogers v. Wahl, 210 Kan. 352, 502 P. 2d 716; quoting Gorelick v. Ernstein, 200 Kan. 619, 438 P. 2d 93.) Since the evidence discloses the commuting from Salina to Smith Center was purely for business purposes, and not social; that payments were promised and made; sufficient questions of fact were raised and the motion for summary judgment should not have been sustained. In Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362, opinion filed January 26, 1974, we held the Kansas guest statute unconstitutional. In Vaughn v. Murray, supra, we held: “. . . 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 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.” (p. 467.) The trial court committed reversible error in sustaining the motion for summary judgment finally entered on August 7, 1973. Appeal was made therefrom and pending here January 26, 1974. The ruling in Vaughn is applicable here and the matter is remanded for further proceedings as stated in Vaughn. The defendant claims the plaintiffs appeal was not timely made. Summary judgment was rendered July 17, 1973. Notice of appeal was filed August 17, 1973, or 31 days after summary judgment was filed. K. S. A. 60-2103 (a) provides: “When and how taken. When an appeal is permitted by law from a district court to the supreme court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by section 60-258, except that in any action . . . The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, ... or granting or denying a motion under section 60-252 (b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; and K. S. A. 60-252 (b) provides: “(b) Amendment. Upon motion of a party made not later than ten (10) days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. . . .” The plaintiff, on July 26, 1973, filed a motion for rehearing, asking the court to correct its findings and to set aside its findings in the July 17 decision. This motion was heard on August 7, 1973, and denied. Appeal was taken August 17, 1973, from the order of July 17, 1973, and also from the order of August 7, 1973, denying the plaintiffs motion for rehearing. In Ten Eyck v. Harp, 197 Kan. 529, 533, 419 P. 2d 922, we said: “Although the name attached to a pleading is not conclusive, it is to be considered in connection with what was done and the relief sought. While a 'Motion for Rehearing’ is not one of the motions expressly designated in 60-2103 (a), the plaintiff's motion stated specifically the alleged error of the district court and the grounds relied upon, and looking through form to substance, we think it sought to alter or amend the judgment. (60-259.) Hence, we conclude that plaintiff’s ‘Motion for Rehearing’ sought such relief as is contemplated by K. S. A. 60-259 and 60-2103 (a) and suspended the running of time for perfecting an appeal until it was overruled on October 28, 1965. The notice of appeal, being served and filed on November 22, 1965, was within the 30-day period prescribed by law, and the instant appeal was timely perfected.” The motion herein did seek to "alter or amend the judgment of the district court”, consequently, the time for filing an appeal commenced August 7,1973. The motion to dismiss is denied, and the case is remanded to the district court for further proceedings as above directed.	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The opinion of the court was delivered by Prager, J.: This is an action for an injunction brought by the plaintiff-appellant, Kansas Tobacco and Candy Distributors and Vendors, Inc., on behalf of itself and its members to enjoin James T. McDonald, Director of Revenue, and Walter H. Peery or his Successor as State Treasurer, from enforcing the provisions of the Tobacco Products Act of 1972. (K. S. A. 1972 Supp. 79-3370 through 79-3388.) The plaintiff claims that the act is unconstitutional under both the federal and state constitutions. The trial court rejected the claim of unconstitutionality and denied injunctive relief. Plaintiff has appealed to this court reasserting its position that the act is unconstitutional and urging that the trial court committed certain trial errors. At the outset it would be helpful to examine the provisions of the statute. The Tobacco Products Act of 1972 was introduced as House bill No. 1116 and was enacted by the 1972 legislature as Chapter 375, Laws of 1972. The title of the act reads as follows: “An Act relating to tobacco products other than cigarettes; imposing a tax thereon and upon the privilege of engaging in the business of selling and dealing in tobacco products as a distributor in the state of Kansas; defining certain terms; requiring a license and bond of persons engaging in the business of selling and dealing in tobacco products as a distributor; providing for the issuance, suspension and revocation of such licenses; requiring the keeping of certain records and the making of reports; providing for the filing of returns and the payment of taxes imposed under the provisions of this act; providing for the making of refunds or credits; imposing certain penalties and providing for the collection of delinquent interest and taxes; providing for the holding of hearings; authorizing the adoption of rules and regulations by the director of revenue; declaring certain acts to be unlawful and providing penalties for the violation thereof; and providing for the disposition of revenues collected from licenses and taxes required and imposed under the provisions of this act.” The basic subject matter o£ the act is described in Section 2 which states: “Sec. 2. A tax is hereby imposed upon the privilege of selling or dealing in tobacco products in this state by any person engaged in business as a distributor thereof, at the rate of ten percent (10%) of the wholesale sales price of such tobacco products. Such tax shall be imposed at the time the distributor (a) brings or causes to be brought into this state from without the state tobacco products for sale; (b) makes, manufactures, or fabricates tobacco products in this state for sale in this state; or (c) ships or transports tobacco products to retailers in this state to be sold by those retailers.” Highly summarized the other sections of the act provide as follows: Section 1 is the definition section. Section 3 imposes a ten percent one-time tax on tobacco products on hand on July 1, 1972, with die tax due-date stated to be July 20, 1972. Section 4 requires each distributor engaged in die business of dealing in tobacco products in the state to obtain a distributor s license. An application form is prescribed. Out-of-state distributors must appoint tire secretary of state as agent for service of process. Section 5 requires payment of a $25 annual distributor’s license fee and a corporate surety bond to secure payment of all taxes due under die act. Sections 6 and 7 are concerned with the mechanics pertaining to the issuance, expiration, display, suspension and revocation of licenses. Sections 8 and 9 have to do witii the keeping of records and filing of returns pertaining to the sale of tobacco products. Section 10 provides for a refund and credit for taxes paid where tobacco products previously taxed are not sold in the state due to return to the manufacturer or destruction. The remaining sections cover the penalty for failure to file returns, the payment of taxes with interest and penalty, and miscellaneous procedures pertaining to the administration of the act. The plaintiffs first point on appeal is that the subjeot matter of the act is not clearly expressed in its title as required by Article 2, Section 16 of the Kansas Constitution which declares in part as follows: “No bill shall contain more than one subject which shall be clearly expressed in its tide. . . ." Before considering the specific arguments presented we should note that under our decisions an act under consideration is to be given liberal construction, which all doubts resolved in favor of its constitutionality for the purpose of carrying into effect the will of the legislature. (Westover v. Schaffer, 205 Kan. 62, 468 P. 2d 251.) The guidelines and principles to be followed in determining the sufficiency of the title of a statute were well summarized in Westover and more recently in Brickell v. Board of Education, 211 Kan. 905, 508 P. 2d 996. It is not necessary that the title be a synopsis or abstract of the entire act in all its details. It is sufficient if the title indicates clearly, though in general terms, the scope of the act. The purpose of the title is to direct the mind to the contents of a bill or of an act, so that members of the legislature and the public may be fairly informed and not deceived or misled as to what it embraces. We must uphold a legislative enaotment if we can reasonably do so. The plaintiff first contends that the title is defective because of the peculiar wording of the second clause which states in substance that a tax is imposed “upon the privilege of engaging in the business of selling and dealing in tobacco products as a distributor in the state of Kansas.” Plaintiff argues that this clause restricts the application of the act only to resident distributors whereas sections 1, 2, 3, 4 and 9 make the act applicable to both resident and nonresident distributors. Hence, plaintiff claims, the subject is erroneously expressed in the title. We do not agree. The particular clause of the title referred to does not restrict the application of the statute to resident distributors alone. The title does not dis- Roguish between resident and nonresident distributors but makes the statute applicable equally to any and all distributors engaged in the tobacco business in the state. Seotion 1 (d) (K. S. A. 1972 Supp. 79-3370) defines the term “distributors” broadly to include both resident and nonresident distributors. The point is without merit. Plaintiff next attacks the title because the second clause states that a tax is imposed upon tobacco products and upon the privilege of engaging in business as a distributor. It points out that the body of the act taxes only the privilege of doing business and does not tax directly any tobacco products. Hence, it is argued that the title incorrectly states that there is a tax imposed on tobacco products when in fact there is no tax imposed on tobacco products. We believe that the answer to this contention may be found in Putnam v. City of Salina, 136 Kan. 637, 17 P. 2d 827, where we stated that whatever features of the title of an act are wanting in its text may be ignored. Under Article 2, Section 16 of the Kansas Constitution, a statute is not void because the title is broader than the act itself. (State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618; and Eisman v. Martin, 174 Kan. 726, 258 P. 2d 296.) The plaintiff’s third attack upon the title is that the fourth clause of the title requiring a license and bond of distributors does not state with particularity that an annual fixed sum is to be charged for the license or that it is a license for revenue, while under Section 5 of the act, each distributor must pay annually $25 for a license for each place of business at which it proposes to engage in business. Plaintiff has cited no authority which requires that the exact amount of an annual license fee must be stated with specificity in the title. In our judgment plaintiff’s position here is overly technical and unreasonable. Furthermore the plaintiff’s argument that the $25 license fee is for revenue purposes is clearly without merit. The record makes it clear- that the $25 license fee will be paid by only 132 tobacco distributors in Kansas. It would generate a total annual income of $3300. The undisputed evidence presented on behalf of the defendants shows that the estimated cost of administration of the act would be $23,266 per year. Under these circumstances it cannot reasonably be contended that the $25 annual license fee is for revenue purposes rather than a reasonable fee to defer at least part of the cost of administering the act. The plaintiff’s second and third points are concerned with the propriety of the trial court’s admitting into evidence the posttrial deposition of Raymond L. Barkley along with two exhibits attached thereto. This deposition with exhibits was introduced on the issue of whether or not -the $25 annual license fee was for revenue purposes or for regulatory purposes. This evidence disclosed that the $25 annual fee would produce a yearly revenue in the amount of $3300 and that the cost of administering the act would be $26,266 per year. As we read the record we think it clear that plaintiff’s counsel did not object to the admission of this testimony and that the plaintiff and defendants agreed to the admission of the deposition. Furthermore such evidence was properly admitted as relevant on the issue of whether or not the annual license fee was for revenue purposes. Under the circumstances we find no error on the part of the trial court in admitting this evidence. The plaintiff next contends that the trial court erred in not finding that the statute was unconstitutional as an unlawful delegation of legislative power to private persons. In support of its position plaintiff reasons as follows: The tobacco manufacturer sets the original wholesale invoice price;, this invoice price is the base upon which the ten-percent tax is applied. Since the manufacturer sets the invoice price he has the power to establish the tax base. This constitutes a delegation of legislative power to the manufacturer. We reject the plaintiff’s rationale. Tobacco manufacturers have a right to set wholesale prices for their tobacco products. The statute does not malee it the function of the director of revenue to set prices for tobacco products. The statute does not delegate to the tobacco manufacturers the power to do anything. Whatever price the manufacturer sets for the distributors to pay for tobacco products is simply the base upon which the ten-percent tax is applied. There is no delegation of legislative power. The argument advanced here could logically be made concerning any type of ad valorem tax. It obviously has no validity. Plaintiff next raises the point that the application of the privilege tax on tobacco distributors is unequal, discriminatory and lacking in uniformity. Plaintiff takes the position that the impact of the tax falls unequally and not uniformly because some tobacco products which sell for a certain retail price carry a higher manufacturer s invoice price than products which are sold for the same retail price. Plaintiff argues that this is discriminatory. We do not find this to be unreasonable. It is true that the manufacturer’s invoice price varies with different tobacco products but we find nothing inherently dis criminatory as a result thereof since a uniform tax of ten percent is applied in every case to an established tax base. It has been held that a license tax on the sale of merchandise may constitutionally be based on the wholesale price even though some retailers pay a higher wholesale price than others for the same goods. In Exchange Drug Co. v. State Tax Commission, 218 Ala. 115, 117 So. 673, followed in 219 Ala. 701, 122 So. 917, the Supreme Court of Alabama held that perfect equality of taxation is unobtainable and general legislation creating license taxes is not to be condemned because in its application to individuals it involves inequalities, unless it becomes discriminative between individuals of the class taxed and selects some for an exceptional burden. The case involved an Alabama statute which levied a license or privilege tax on persons selling certain tobacco products equal to fifteen percent of the wholesale price. It was argued that the tax was discriminatory and denied equal protection of law to small retail dealers compelled to pay a higher wholesale price for tobacco than persons selling in large quantities. The contention was. rejected and the statute was upheld. The United States Supreme Court dismissed the appeal from this decision for want of a substantial federal question. (Exchange Drug Co. v. Long, 281 U. S. 693, 74 L. Ed. 1122, 50 S. Ct. 244.) Likewise we find that the Tobacco Products Act now before us does not unconstitutionally discriminate between or against individual tobacco distributors. The trial court excluded evidence offered by the plaintiff which would have tended to show that since there is no stamp or meter imprint attached to the tobacco product, the payment of the tobacco tax would be avoided on a wide scale. Plaintiff argues that this was error. In this regard we note that Section 3 (79-3371) places upon the first distributor who brings tobacco products into the state for sale the duty to remit the tobacco products tax and that Section 9 (79-3378) further requires a distributor doing business in the state to file a return each month showing the quantity and wholesale sales price of each tobacco product brought into the state or manufactured in the state during the preceding calendar month. The director of revenue should be given an opportunity to enforce the law and collect the tax. We cannot hold it unconstitutional because some persons might seek to avoid its payment. If such were so,, it could logically be argued that income taxes are unconstitutional because some persons fail to pay them. The plaintiff next contends that the trial court erred in rejecting evidence that retail tobacco sellers would probably suffer a loss of business because of the tax. In our judgment such an argument is directed toward the wisdom of the statute, not to its constitutional validity. The trial court did not err in excluding the proffered testimony. Finally the plaintiff argues that the statute is invalid on the grounds that it discriminates against interstate commerce and the enforcement thereof would constitute an undue burden on interstate commerce. Plaintiff’s argument is somewhat obscure. It is true that state and local taxes, of whatever name or nature, which discriminate against interstate commerce are unconstitutional under the commerce clause of the United States Constitution. (West Point Grocery Co. v. Opelika, 354 U. S. 390, 1 L. Ed. 2d 1420, 77 S. Ct. 1096.) We do not see, however, how it can be said that the Tobacco Products Act of 1972 discriminates against firms engaged in an interstate business. The privilege tax applies equally to all distributors engaged in the business of selling or dealing in tobacco products in Kansas — to both resident and nonresident distributors. There is no differentiation between purchases made from Kansas manufacturers and purchases made outside Kansas in interstate commerce. All purchases without discrimination are taxed equally at an equal and constant tax rate of ten percent. The tax is imposed either at the time the tobacco distributor brings tobacco products into the state for sale or at the time a local distributor manufactures or fabricates tobacco products in this state for sale in this state. We find no basis for a charge of discrimination against interstate distributors. Furthermore we find nothing in the record to show that distributors of tobacco products in interstate commerce are in any way unduly burdened by the statutory privilege tax imposed. For the reasons set forth above the judgment of the trial court is affirmed. Schroeder, J., dissenting.	[ -111, -18, -8, 44, 10, -16, 56, -106, 89, -95, 37, 83, -19, -54, -124, 123, -5, -35, 80, 106, -44, -77, 23, -56, -106, -71, -39, -41, -79, 91, -27, 126, 12, 48, -54, 85, 70, -22, -59, 92, -18, 8, -103, -31, 80, 75, -76, 107, 114, 67, 81, 23, -29, 40, 30, -61, 72, 44, -117, 12, -21, -16, -101, -35, 93, 22, 33, 52, -72, 7, -40, 111, -112, 17, 33, -24, 115, -90, -122, 84, 47, -39, 8, 98, 98, 32, 53, -19, -84, -120, 46, 83, -67, -58, -80, 88, 64, -114, -66, -99, 116, 2, -117, 126, -22, 84, -105, 60, 2, -117, -76, -93, -117, 116, 8, 7, -21, -90, 16, 65, -57, -76, 92, 87, 54, 15, -49, -108 ]
Per Curiam: This is an appeal from an order summarily denying postconviction relief. Appellant Max Leroy Potts was convicted by a jury of the offense of robbery in the first degree. He was sentenced under the habitual criminal act. Upon direct appeal his conviction was upheld (State v. Potts, 205 Kan. 47, 468 P. 2d 78). Essentially, in his motion for relief under K. S. A. 60-1507 appellant alleges several witnesses against him committed perjury and he was not guilty of the offense charged. The motion stated no facts to support his conclusion and identified no witnesses upon which he relies for proof. The trial court examined the records and files in the case and denied tire motion without requiring appellant’s appearance or the appointment of counsel. Conclusory allegations alone are insufficient to present a justiciable issue under 60-1507; moreover, this proceeding was never designed to supply a forum in which to retry guilt or innocence of one convicted of crime nor to have a second appeal. The trial court ruled correctly and its judgment is approved.	[ 17, -24, -24, -65, 10, 96, 14, 42, 97, -29, 38, 83, 109, 86, 1, 123, -18, 61, 85, 121, -33, -73, 87, -55, -14, -13, 27, -59, -79, 91, -27, 28, 76, -16, 2, -43, 6, -54, -89, 84, -114, 1, -88, -63, 80, -116, 48, 107, 84, 23, 49, 30, -5, 42, 24, -62, -55, 44, 75, -65, -47, -72, -102, -59, 124, 4, -95, 36, -100, 3, 80, 46, -104, 57, 1, 88, 113, -74, -126, 84, 109, -5, -124, 98, 98, 33, 52, -23, 41, -88, 62, 30, -99, 39, -38, 72, 99, -83, -74, -35, 117, 52, 14, -2, 104, 12, 29, 108, 7, -97, -108, -77, 15, 125, -98, -118, -1, 21, 48, 49, -51, -30, 92, -41, 57, -1, -82, -74 ]
Opinion of the court was delivered by Schroeder, J.: This is an appeal by the Director of Property Valuation in an ad valorem tax case from a judgment of the District Court of Lyon County, Kansas, reversing orders of the State Board of Tax Appeals determining the state-wide 1970 ad valorem assessment of Mobil Pipeline Company’s tangible property, consisting of its products line and its crude line located in Kansas, and determining the assessed valuations of such property. The underlying question on appeal concerns the validity of the orders of die State Board of Tax Appeals determining the assessed valuation of Mobil’s property in Kansas for the year 1970. A similar case was before this court in Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P. 2d 147. There, however, the 1969 valuation and assessment of the public utilities’ property was made pursuant to K. S. A. 1968 Supp. 79-503, which provided for the determination of justifiable value, while here, by reason of subsequent legislative amendment, the valuation and assessment of die public utilities’ property in Kansas was made pursuant to K.S.A. 79-5a04. (L. 1969, ch. 434, January 1, 1970.) The Kansas segments of the interstate products line and crude line of Mobil Pipeline Company (appellee) located in 32 Kansas counties, including Lyon County, Kansas, were initially assessed by the Director of Property Valuation (hereafter die Director) in the amount of $1,797,650.00 for the products line and in the amount of $4,150,985.00 for the crude line by orders dated June 5, 1970, fixing for ad valorem tax purposes the 1970 assessed valuation of the two Kansas segments of Mobil’s interstate pipeline. Mobil is a state assessed public utility. The foregoing valuation and assessment was appealed by Mobil to the Board of Tax Appeals (hereafter the Board) pursuant to authority granted by K. S. A. 74-2438. On the 7th day of August, 1970, the Board heard Mobil’s appeals and on the 25th day of August, 1970, determined the matters by making written findings of fact which it entered with its orders. The pertinent portion of the order concerning the crude line made by the Board reads: “After hearing the evidence and after being fully advised, the matter was taken under advisement. “Now, on this 25th day of August, 1970, the matter of the valuation of appellant’s property comes on for decision by the Board, and the Board finds as follows: “1. The appellant owns pipeline properties and related facilities which are operated to transport crude oil and products derived therefrom in interstate commerce. “2. That pursuant to the Kansas Statutes Annotated the Director of the Property Valuation of the State of Kansas determined that the system fair market value of the applicant’s property on January 1, 1970, was $304,771,- 292.00; that 4.54% of that should be allocated as a Kansas Factor; that the Kansas Fair Market Value of the appellant’s property would thus be $13,836,-617.00; and with the same assessed at the 30% rate pursuant to the Kansas Statutes Annotated the appellant’s Kansas assessed valuation would be $4,-150,985.00. “3. That the appellant is appealing from the Order of the Director of the Property Valuation Department of the State of Kansas, dated June 5, 1970, fixing and determining among other things the above Kansas Assessed valuation of the appellant’s property. “4. That the appellant contends that the Director of the Property Valuation Department of the State of Kansas did not properly consider and use the factors set out in K. S. A. 79-5a04 in determining the Fair Market Value of the appellant’s property pursuant to K. S. A. 79-5a03. “5. That the appellant contends that the Director of Property Valuation of the State of Kansas used methods and formula of evaluation having no relation to tire Fair Market Value, true value or actual value of appellant’s property and has failed to consider or apply the factors required by the statute to be considered and applied with the result that the tangible property of the appellant has been assessed at a ratio many times greater than the real and personal property of other taxpayers located in the same counties in which the appellant operates and owns property and subject to the same tax levy. “6. That the appellant further contends that due to depleting oil reserves and/or sources insufficient consideration was given to this factor by the Director of the Property Valuation Department of the State of Kansas. “7. That the Director of the Property Valuation Department of the State of Kansas in determining the fair market value of the appellant’s property within the State of Kansas considered all of the approaches and factors set out in K. S. A. 79-5a04, together with pertinent additional information and evidence available to him and as a result of his consideration he correctly determined the fair market value of the appellant’s property within the State of Kansas. “8. That the evidence revealed that the appellant’s lines were presently operating at 50-60% of their capacity and that the Kansas Director of Property Valuation had recognized the depleting condition of the reserves and sources of oil available for transmission in the appellant’s lines making an adequate present allowance factor. “9. That based on the evidence presented the correct assessed valuation of the appellant’s properties within the State of Kansas is $4,150,985.00 the same as was determined by the Kansas Director of Property Valuation.” (Emphasis added.) Mobil’s appeal was thereupon denied by the Board’s order which sustained the assessed valuation of Mobil’s properties within Kansas as determined by the Director of Property Valuation. A similar order was entered with respect to Mobil’s products lines, except for the following: That the system fair market value of Mobil’s property on January 1, 1970, as to the product line was determined to be: “. . . $299,608,333.00; that 2% of that should be aEocated as a Kansas Factor; that the Kansas Fair Market Value of the appeEant’s property would thus be $5,992,167.00; and with the same assessed at the 30% rate pursuant to the Kansas Statutes Annotated the appellant’s Kansas assessed valuation would be $1,797,650.00.” With respect to the products line the Board specifically found: “7. That based on the evidence presented the correct assessed valuation of the appellant’s properties within Kansas is $1,797,650.00, the same as was determined by the Kansas Director of Property Valuation.” (Emphasis added.) In all other respects the two orders were substantially identical. Thereafter, and on the 25th day of September, 1970, Mobil appealed pursuant to K. S. A. 1970 Supp. 74-2426, to- the District Court of Lyon County from the Board’s orders heretofore related. K. S. A. 79-5a04, insofar as material to this appeal, reads: “The valuation of the property, both real and personal, tangible and intangible, of aU public utilities as defined in this act shall be the fair market value thereof and what such property would sell for under conditions which ttsuaEy govern the sale of property in that character. The property valuation department, in determining the fair market value, shall ascertain and determine as nearly as it can and consider: “(1) Original cost. “(2) Original cost less depreciation, or replacement cost new less depreciation, provided that where either method is used proper aEowance and deduction shall be made for functional or economic obsolescence and for operation of nonprofitable facilities which necessitate regulatory body approval to eliminate. “(3) The market or actual value of all outstanding capital stock and funded debt excluding current and deferred liabilities. “(4) The utility operating income after deduction of all income taxes, capitalized in the manner and at such rate or rates as shaE be just and reasonable. “(5) Such other information or evidence as to value as may be obtained that wiE enable the property valuation department to determine the fair market value of the property of such companies.” (Emphasis added.) Notices of assessed value sent by the Director to Mobil will best illustrate the basic point made by Mobil throughout these proceedings. For the products line the Director’s notice sets forth the following: ‘1. Cost Approach: 1. Original cost..................................$ 204,792,805. 2. Original cost less depreciation...................$ not available 3. R. C. N. less depreciation.......................$ 175,882,037. 4. ...........................$ ‘71. Market Approach: 5. Stock and Debt...............................$_ 6. Stock and Debt ...............................$_N/A 7. Market Comparison............................$ 315,339,961. "III. Income Approach: 8. $22,673,497. revenue cap’d.@7%.................$ 323,907,100. 9. $14,870,570. revenue cap’d.@7%.................$ 212,436,714. 10._ revenue cap’d.@_%...............$ "IV. 11. System-Fair Market Value ......................$ 299,608,3337" 12. Kansas-Allocation Factor ........................2% 13. Kansas-Fair Market Value.......................$ 5,992,167. 14. Kansas-Assessment Per Cent..................... .30% 15. Kansas-Assessed Valuation ......................$ 1,797,650.” The notice of the Director for the crude line to Mobil set forth the cost approach, the market approach, and the income approach identically as above. But under heading IV entries eleven through fifteen read: “IV. 11. System-Fair Market Value ......................$ 304,771,292. 12. Kansas-Allocation Factor ........................4.54% 13. Kansas-Fair Market Value.......................$ 13,836,617. 14. Kansas-Assessment Per Cent......................30% 15. Kansas-Assessed Valuation ......................$ 4,150,985." The foregoing notices set out the Director’s appraisal indicators of Mobil’s system fair market value. They also showed the manner in which the director allocated his appraisal to the two pipelines, by dividing the Kansas allocation factor of 6.54% between the two lines, giving the products fine 2% and the crude line 4.54% out of the total Kansas allocation. The notices also indicate a difference between the system fair market value of tifie two pipelines. This is challenged by Mobil in its notice of appeal to the district court. There is no controversy as to the allocation factor or its division between the two pipelines as used by the Director. Mobil does not attack the separation of the two pipelines for assessment purposes as an unreasonable classification. The issues on appeal to the Board of Tax Appeals and to the District Court of Lyon County were whether the determination of the system value was unreasonable and excessive, and whether the provisions of 79-5a04 (4) had been violated. Lines eight and nine of the notices of assessed value under the heading “HI. Income Approach” are to be observed. The focal point of Mobil in challenging the assessed valuation of its pipelines in Kansas, as being the product of constructive fraud, is founded upon the entry at line number eight. Mobil argues the Director instructed his staff to capitalize an income figure before deduction for income taxes at line number eight, contrary to 79-5a04 (4), supra, which requires the capitalization of the utility operating income “after deduction of all income taxes.” In 1971 the legislature amended 79-5a04 (4) by deleting the words “after deduction of all income taxes” (L. 1971, ch. 295, § 1; effective April 19, 1971). Line number nine on the Directors notices of assessed value capitalized the amount on line eight less income taxes, thus disclosing in the notices of assessed value under “III. Income Approach” a capitalization value based upon income before deductions for all income taxes (line eight) and a capitalization value based upon income after deduction for all income taxes (line nine). From the foregoing, the notices of assessed value show that for both of Mobil’s pipelines the Director used identical appraisal indicators of system fair market value. Two of these were above his final determinations of system value: Market comparison at $315,339,961.00 and the first income approach (line eight which was before deduction of income taxes) at $323,907,100.00. The appraisal indicators of original cost less depreciation and stock and debt were indicated as “not available”. Original cost, reconstruction new less depreciation, and the second income approach (line nine which was after deduction of income taxes and indicated a system value of $212,436,714.00) all were less than the Director’s final determinations of system value. In both income approaches, the Director used a capitalization rate of 7%. The record discloses the reasons for the variation in the system value on the crude fine and the products line, but we find it unnecessary to pursue and explain the variation because it is immaterial to the basic issues presented on appeal to this court. In its notices of appeal to the District Court of Lyon County from the orders of the Board in each case Mobil alleged among other things: “4. The Order of the Board of Tax Appeals is unreasonable, arbitrary and capricious within the meaning of Kansas law applicable to ad valorem property taxation in general and of K. S. A. 74-2426 specifically, in that: “The valuation of Appellant’s property as fixed and determined by the Director per his Order was unreasonable, arbitrary and capricious in that it was made in violation of the law and of the statutes of the State of Kansas and of the Constitutions of the United States and of the State of Kansas; and “That by sustaining the Director’s determination of valuation and his Order, in toto, the Board of Tax Appeals adopted and made its own the Director’s unreasonable, arbitrary and capricious conduct in making a valuation of Appellant’s property in violation of the law and of the statutes of the State of Kansas and of the Constitutions of the United States and of the State of Kansas. “5. The Director’s determination of the valuation of Appellant’s property was unreasonable, arbitrary and capricious and, by adoption thereof, the Order of the Board of Tax Appeals was equally unreasonable, arbitrary and capricious in the following particulars:” Mobil then set forth the provisions of 79-5a04, supra, and further alleged in its notices of appeal: “The evidence adduced at the hearing of Appellant’s appeal before the Board of Tax Appeals established that, in valuing Appellant’s property, the Director placed his principal reliance upon the ‘utility operating income’ method of evaluation, enumerated as ‘(4)’ above, this subparagraph. so##» “(2) The evidence adduced at the hearing of Appellant’s appeal before the Board of Tax Appeals established that, notwithstanding the express requirements of K. S. A. 79-5a04 (4) that the utility operating income be computed ‘after deduction of all income taxes,’ the Director in valuing Appellant’s crude pipeline and products pipeline properties for 1970 ad valorem property tax purposes not only failed to exclude income taxes from his utility operating income calculations, but in fact added thereto for federal income taxes the total amount for the pipelines together of $7,802,927.00.” The trial court after hearing the matter and giving consideration to the transcript, pleadings, argument of counsel, the contents of the numerous briefs and suggested findings of fact and conclusions of law submitted by counsel for ihe parties determined the matter in a memorandum opinion filed October 18,1972, wherein it adopted Mobil’s suggested findings of fact one through fourteen verbatim, except for a few minor deletions. These findings recited the chronology of events, the appeals, the statutory authority for them and the issues presented at the various procedural stages of the case. Commencing with No. 8 the findings of the trial court read: “8. The Director admitted and the evidence is not controverted that the basic data which he used in making his Cost and his Income Approaches in valuing Mobil’s pipeline properties for 1970 Kansas ad valorem property tax purposes came from appellant’s filings with and reports to the ICC, particularly ICC Valuation Docket No. 1311 and ICC Form P. This data included: reproduction cost new less depreciation, operating expenses, original cost, depreciation, income, and income tax. Likewise, the taxpayer admitted and it is not controverted that all the basic data used by Dr. Herbert B. Doreau, appellant’s expert valuation witness, in testimony before the Board came from the same ICC docket and report. The Director, in his Cost and his Income Approaches, and appellant valued appellant’s pipeline properties using identically the same basic data. The only differences between the figures used before the Board by appellant and by the Director in the Director’s Cost and Income Approaches were the amounts to be capitalized and, in some instances only, the capitalization rates. Both before the Board and on these direct appeals, the appellant consented to the 7% capitalization rate used by the Director. On these direct appeals no issue is raised as to the correctness of the 7% rate of capitalization, and the only difference between the figures of the appellant and the Director is the amount to be capitalized. “9. In making their respective computations of Mobil’s System Fair Market Value for 1970 Kansas ad valorem property tax purposes, the Director and the appellant ascertained and determined as nearly as they could and considered each of the factors enumerated in K. S. A. 79-5a04. Nonetheless, both the Director and the appellant placed virtually total reliance upon the income approach, which is enumerated and defined in K. S. A. 79-5a04 (4). “10. K. S. A. 79-5a01 et seq was enacted by the Kansas Legislature in 1969 and was applicable to ad valorem property tax valuation for the first time in 1970. That statute was a specific statute, dealing expressly and solely with public utilities and the ad valorem property taxation of public utility taxpayers only. In prior years, the applicable statute was a general statute, entitled ‘Rules for Valuing Property’, K. S. A. 79-501 et seq, and was applicable to all real and tangible personal property subject to taxation. “An essential difference exists between a business enterprise which operates in a free and unregulated market and a business enterprise such as Mobil which operates in a regulated market and is subject to the control of regulatory agencies such as the ICC. Regulation restricts and determines the amount of income available to the investor and for capitalization and valuation purposes. This restriction is not imposed in the free market. “The income approach factor defined in K. S. A. 79-5a04 (4) was merely a clarification as applied to public utilities of the more generally stated income approach defined in K. S. A. 79-503 (g). It was not a substantial alteration of the concept of the income approach as that concept was incorporated in the prior statute. This clarification gave due recognition to the above-stated essential difference between business enterprises operating in free markets and those operating in regulated markets. “11. K. S. A. 79-5a04 (4) expressly required the Director to make a ‘deduction of all income taxes’ before capitalizing utility operating income. In making his alternative income approach at fine 8 of the Notices, the Director added to the $8,690,392.00 Carrier Operating Income shown on ICC Form P the amount of $7,802,927.00 shown thereon as an Operating Expense for Income Taxes. The figures which the Director capitalized at fine 8 of his Notices, therefore, included Income Taxes. The Director’s failure to exclude Income Taxes from the Operating Income which he capitalized in this Income Approach was a direct violation of the express language of K. S. A. 79-5a04 and was, therefore, unreasonable, arbitrary and capricious within the meaning of K. S. A. 79-2426 and was in fraud of Mobil’s rights. “12. The Director testified that he considered every indication of value shown on his Notices, considering them all and giving no particular weight to any one. The error thus made by the Director in the one income approach is so substantial as necessarily to have had a material effect on his determination of the valuation of appellant’s pipeline properties for 1970 Kansas ad valorem property tax purposes. This error being fraudulent as to appellant, the Director’s determination of such valuation likewise is to that extent fraudulent. “13. The Director failed properly to consider and to apply K. S. A. 79-5a04, and specifically sub-paragraph (4) thereof in the respects hereinabove found. This failure constitutes unreasonable, arbitrary and capricious conduct as a matter of law within the meaning of K. S. A. 74-2426, and is a fraud upon the rights of Mobil. That this fraud is substantial is further emphasized by the findings hereinbefore made that, in valuing Mobil’s pipeline utility properties for 1970 Kansas ad valorem property tax purposes, the Director placed virtually total reliance upon the income approach contained in sub-paragraph (4) of the statute. The values and assessments for appellant’s pipeline properties as thus determined by the Director and as affirmed in their entirety by the Board likewise are — insofar as they are affected by the Director’s failure properly to apply the statute in the respects hereinabove found — unreasonable, arbitrary and capricious as a matter of law within the meaning of K. S. A. 74-2426, are in fraud of the rights of appellant, and are therefore illegal and void. “14. Under K. S. A. 74-2426: these cases are ‘appeals’, not judicial reviews; they are to ‘proceed as an original action’ and the proceedings are denominated a ‘trial’; they are to conclude in a ‘final decision’ which ‘shall be entered as a judgment as in other civil cases’, and that judgment shall be against the appellant ‘or against the Director’ as the case may be. “The Court concurs in the action of both the Director and the taxpayer in applying the income approach as the principal indicator of the value of Mobil’s utility properties for 1970 Kansas ad valorem property tax purposes. Because both the Director and the taxpayer used identically the same basic data in their respective income approaches, as hereinbefore found, this Court can calculate the amount of valuation shown in the Director’s Notices which resulted from the Director’s failure properly to apply K. S. A. 79-5a04 in the respects hereinbefore found. Such calculation will not involve this Court in the assessment process. Rather, it is ‘a mere calculation’ based on the findings herein made which are themselves based on admitted and uncontroverted evidence, all within the meaning of Hitch Land & Cattle Co. v. Board of County Commissioners (1956), 179 Kan. 357, 295 P. 2d 640. “Obvious practicalities dictate that this Court determine forthwith the extent to which the valuations found by the Director are affected by his aforesaid failure properly to apply the statute. ‘The work of assessing property for taxation must be done speedily and the result must not be long in doubt. Otherwise, chaos would be the result. The matter of first consideration is that the business of government should be carried on.’ (Mobil Oil Corporation v. McHenry [1968], 200 Kan. 211, 228, 436 P. 2d 982, quoting Hanzlick v. Republican County Comm’rs. [1939], 149 Kan. 667, 672, 88 P. 2d 1111.) Sixty-four refund suits wherein Mobil is plaintiff and involving 1970 Kansas ad valorem property taxes presently are pending in twenty-nine Kansas counties. The disposition of those refund suits appears to be directly related to and substantially controlled by the instant cases. Further, none of the cases recently decided by the Kansas Supreme Court arose under K. S. A. 79-5a04 nor any statute containing substantially the same provision as sub-paragraph (4) thereof, nor did they present issues similar to those issues raised on these appeals. “15. Within the limited issues of this case, as defined by the direct appeals statute (K. S. A. 74-2426) which allows such an appeal only where the order of the Board is allegedly arbitrary, unreasonable and capricious as to amount to constructive fraud, the figure properly to have been capitalized by the Director in Iris income approach was the $14,870,580.00 figure shown at line 0 of his Notice of Assessed Value. “16. The Director used, the taxpayer conceded, and the court approves a 7% capitalization rate resulting in a System Fair Market Value of $212,436,-714.00. “17. The amount of the Director’s System Fair Market Value in excess of $212,436,714.00 results from his arbitrary, unreasonable and capricious failure properly to apply the mandate of K. S.A. 79-5a04, and is fraudulent as a matter of law as to appellant for 1970 Kansas ad valorem property tax purposes. “The application of the allocation factors used by the parties to 30% of the proper System Fair Market Value as herein found results in a Kansas Assessed Valuation of appellant’s pipeline properties of $4,168,008.00, of which $2,-893,431.00 is attributable to Mobil’s crude pipeline properties and $1,274,577.00 is attributable to its products pipeline properties. The amount of the Director’s Kansas Assessed Valuation in excess of the amounts herein found results from his arbitrary, unreasonable and capricious failure properly to apply the mandate of K. S. A. 79-5a04, and is fraudulent as a matter of law as to appellant for 1970 Kansas ad valorem property tax purposes. “18. The Board is deemed to have adopted the Director’s value conclusions and procedure because the Board affirmed the Director’s Order in toto. Therefore, the use of the term ‘Director’ throughout this memorandum opinion, or words of like import, are equally applicable to the Board’s Orders. “Judgment is hereby entered against the Director and against the Board pursuant to K. S. A. 74-2426 reducing Mobil’s System Fair Market Value to $212,436,714.00, and reducing the Kansas Assessed Valuation of Mobil's pipeline properties to $4,168,008.00, of which $2,893,431.00 is attributable to Mobil’s crude pipeline properties and $1,274,577.00 is attributable to its products pipeline properties. The Board of Tax Appeals is ordered to pay the costs herein. “This memorandum opinion shall constitute the Court’s judgment as well as its Findings of Fact and Conclusions of Law, and shall be effective as such judgment from and after the filing thereof by the clerk of this court.” It is abundantly clear from the above findings of fact and conclusions of law that the trial court substituted its judgment in assessing the property of Mobil subject to state assessment for that of the highest administrative tribunal in the state, the State Board of Tax Appeals. Furthermore, in doing so the assessment made by the trial court was confined to only one of the factors enumerated for consideration in 79-5a04, supra, (L. 1969, ch. 434, January 1, 1970). The only factor considered in determining Mobil’s system fair market value was utility operating income after deduction of all income taxes, capitalized at 7%, the capitalization rate having been conceded by the parties hereto to be proper. No consideration was given by the trial court to the other factors enumerated in determining Mobil’s system fair market value. Matters of assessment and taxation are administrative in character and not judicial, and an interference by judges with the function of administrative officers invested with the sole authority to determine valuation of property for tax purposes is unwarranted by the law. The district court could not substitute its judgment for that of the State Board of Tax Appeals. (Builders, Inc. v. Board of County Commissioners, 191 Kan. 379, 381 P. 2d 527, and authorities cited therein.) The court has held that matters of valuation and assessment are administrative in character and a detennination of the Board of Tax Appeals acting within its legislative authority, when fairly and honestly made, is final, and the courts will not interfere so as to usurp the Board’s function or substitute their judgment for that of the Board. (Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906 [Syl. ¶ 4].) This court has held where the legislature has detailed the factors or combinations thereof to be considered by taxing officials in assessing property, those officials may not ignore any of such factors pertinent to the evaluation of specific property. To do so is arbitrary action amounting to constructive fraud regardless of the good faith of the assessor. (Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P. 2d 59; and Angle v. Board of County Commisioners, 214 Kan. 708, 522 P. 2d 347.) The foregoing assessment of Mobil’s crude pipeline and Mobil’s products pipeline in the State of Kansas by the trial court was erroneous. Were the orders of the Board of Tax Appeals concerning the assessment of Mobil’s pipeline properties in Kansas for the year 1970 unreasonable, arbitrary or capricious? Several preliminary matters should be considered before proceeding to determine this question. First, all of the evidence presented to the board which the trial court considered (the transcript, the exhibits and documentary matters of which the board had judicial knowledge) was documentary in form. This court has recognized that under certain dr cumstances when the evidence is written, documentary in character, or in the form of depositions or transcripts its duty is to decide for itself the facts established by the evidence, substantially as it would in an original case. (Boese v. Crane, 182 Kan. 777, 324 P. 2d 188; Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10; Thompson v. Thompson, 205 Kan. 630, 470 P. 2d 787; and Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P. 2d 147.) On the state of the record here presented this court will review the evidence to ascertain the facts and determine whether the orders entered by the board were “unreasonable, arbitrary or capricious”, substantially as it would in an original action. The second preliminary matter requiring our critical attention is the authority and power of the State Board of Tax Appeals, where an appeal is taken to the Board pursuant to K. S. A. 1970 Supp. 74-2426. Mobil contends the Board’s authority is limited in scope. Mobil argues the Board’s jurisdiction on a K. S. A. 74-2437 proceeding is “to hear appeals from the director of property valuation on the assessment of state assessed property”; that “The obvious target of this language is the Director’s determination and his underlying factual and material bases therefor.” To support this argument Mobil relies on Builders, Inc. v. Board of County Commissioners, 191 Kan. 379, 381 P. 2d 527, wherein the court described the Board (together with the County Board of Equalization) as: “These official boards are the administrative agencies provided by law to determine controversies relating to assessments”. Mobil also relies upon language in Northern Natural Gas Co. v. Dwyer, supra, to the effect that the Board was described as “the highest administrative tribunal established by law to determine controversies relating to assessments of property for ad valorem tax purposes”. Thus at the administrative level, Mobil concludes, the Board determines controversies relating to assessment. Consequently the authority of the Board under 74-2437, supra, is not the making of an assessment, but rather a review of the Director’s action, viewed against the constitutional, statutory and judicial valuation requirements. Mobil pursues the argument into the article on property valuation (K. S. A. 79-1401 et seq.) which confers broad powers and duties on the director with regard to the “appraisement and assessment ... of gas pipe lines and property, of all pipe lines and property” (K. S. A. 79-1404 Fifteenth; et seq.). Mobil contends there is no corresponding “appraisement or assessment” power or duty legislatively conferred upon the board. The attorney general in his brief amici curiae says the Board’s powers and duties, as intended by the legislature, should be accurately portrayed. He argues whether the Board is sitting as a State Board of Tax Appeals or as the State Board of Equalization all parties are fairly and impartially treated by the Board which has access to any and all relevant facts upon which it may render its independent determination. On December 11, 1971, this court announced the decision in Northern Natural Gas Co. v. Dwyer, supra, ten months prior to the hearing by the trial court on tire appeals herein. There the court had before it the construction of K. S. A. 1970 Supp. 74-2426 for the first time. The court said that despite the provisions in 74-2426, supra, making the Director a party to an appeal from an order of the Board, it is the order of the Board which is the subject of review in the district court on appeal. In reviewing the evidence before the Board the court repeatedly emphasized that it was the order of the Board which was the subject of review, and the Board’s decisions being administrative in nature, were subject to limited review in the courts just as decisions of other administrative tribunals. In the opinion the court said: “. . . The Director exercises independent judgment in approving the valuation of property by personnel in his department, and the Board exercises its judgment anew and independent of the Director in approving the valuation and assessment of property. Whether the Board determines the matter of property valuation before it as an appeal board or as a board of equalization, it functions independently of the Director in matters of administrative judgment and decision. It is the order of the Board which is here for review.” (p. 365.) The legislature in authorizing an appeal to the district court from “any order determining, approving, modifying or equalizing the assessment of property for property tax purposes” (74-2426, supra) inferentially recognized the power of the Board in making each of the foregoing enumerated orders to give them equal status. This simply means that an order of the Board determining the assessment of property, or approving the assessment of property made by the Director, or modifying an order of the Director, has the same status as an order of the Board equalizing the assessment of property for property tax purposes. Mobil’s argument that the power of the Board is restricted by K. S. A. 74-2437b which authorizes the State Board of Tax Appeals to hear appeals from the Director of Property Valuation on the assessment of state assessed property, is unsound. All of the statutes conferring power upon the State Board of Tax Appeals must be construed together. Reference has been made to 74-2426, supra. Under K. S. A. 74-2437a the State Board of Tax Appeals has the power to summon witnesses from any part of the state to appear and give testimony, and to compel such witnesses to produce records, books, papers and documents relating to any subject matter before the Board of Tax Appeals. Under K. S. A. 74-2437b the State Board of Tax Appeals has “. . . [P]ower to issue an order directing depositions of witnesses residing within or without the state, to be taken, upon notice to the interested parties, if any, in like manner that depositions of witnesses are taken in civil actions pending in the district court, in any matter before the board." (Emphasis added.) Additional powers are conferred upon the State Board of Tax Appeals by K. S. A. 74-2439. Here the State Board of Tax Appeals is given the power and duty of “Constituting, sitting and acting as the state board of equalization as provided in K. S. A. 79-1409”. When the foregoing statutes are construed together we think a dear legislative intent is indicated where an appeal is taken to the State Board of Tax Appeals from an order of the Director of Property Valuation on the assessment of state assessed property. The Board has the power and authority to exercise its judgment anew and independent of the Director in determining the assessment of state assessed property. The Board is required to make written findings of fact forming the bases of its determination and final order, and the Board’s findings must be made a part of such final order. (74-2426, supra.) The judgment of the Board supersedes the judgment of the Director as to the assessed valuation of state assessed property. Therefore, it is the judgment of the Board which is subjected to the limited review of an administrative decision in an ad valorem tax case, where appeal is taken to the district court from an order of the Board. The court’s reference in Builder's, Inc. v. Board of County Commissioners, supra, and Northern Natural Gas Co. v. Dwyer, supra, to the State Board of Tax Appeals as the highest administrative tribunal established by law to determine controversies relating to the assessment of property for ad valorem tax purposes does not alter the situation. The word “controversy” was merely used to indicate the taxpayer’s dispute or cause of contention with action by the assessing officials. (See, Webster’s Third New International Dictionary [1961].) The third preliminary matter to consider is prompted by recitals made in the trial court’s findings concerning regulation by federal authority of a public utility operating in interstate commerce. This issue, the regulation of earnings computed on a “rate base”, was the major thrust of the public utility in attacking the assessment of its Kansas property in Northern Natural Gas Co. v. Dwyer, supra. The court there recognized a definite distinction between the valuation of public utility property for rate making purposes, determined pursuant to statutes applicable thereto, and the valuation of the same property pursuant to different statutes for ad valorem tax purposes. We reaffirm Northern Natural Gas Co. v. Dwyer, supra, without further discussion concerning apparent discrepancies in the trial court’s memorandum. K. S. A. 79-503 (g), cited by the trial court in its finding No. 10, called for the capitalization of income (without deduction of income taxes) and the legislature by amendment in 1971 went back to the same concept of capitalization of income by deleting “after deduction of all income taxes” from K. S. A. 79-5a04 (4). In determining the validity of an asessment of state assessed public utility property for ad valorem tax purposes, the essential question is whether the standards prescribed by K. S. A. 79-5a04, in determining the fair market value of the public utility’s property, have been determined and considered by taxing officials, or intentionally and grossly disregarded. We turn now to the evidence presented before the Board to determine whether the factors enumerated in K. S. A. 79-5a04 were properly considered by the Board in entering its orders herein. In view of Mobil’s limited attack which is confined to one factor, the failure of the Director to deduct all income taxes prior to the capitalization of utility operating income as required by subsection 4 of the above statute, we find it necessaiy to go into great detail concerning the evidence. Mobil’s tax agent L. C. Rogers, was the first witness called before the Board of Tax Appeals. He testified that he had prepared and filed the 1970 renditions for Mobil with the Kansas Property Valuation Department. The renditions did not show original costs or original costs depreciated for which blank spaces were provided on the forms. When asked on cross-examination why Mobil had not filled out each line on the form, Rogers simply said it had not been done in the past. He contended the department forms did not fit Mobil’s complete balance sheet data. An employee of the Kansas Property Valuation Department, Richard Rider, testified he had a problem working the original cost approach relative to Mobil's rendition filed with the state because the returns gave him no information virtually, and that he had to take original costs from the ICC dockets which were not broken down between crude and refined lines of Mobil. He testified the “market approach” faotor was developed by using the sale of Great Lakes Pipeline to Williams Brothers which sold for 160% over original cost. After determining Mobil’s original cost he multiplied it by 160% which resulted in the valuation figure of $315,339,961.00 for the market comparison of Mobil’s system value. Rider did not devise the market approach but was given a formula and instructed to follow it. He used this sale on twelve oil industry pipelines in arriving at the market approach factor. Lee Jones, supervisor of the Property Valuation Department’s public utilities section, testified the department had trouble obtaining data from Mobil in past years. He described the returns as incomplete. In previous years the department took what scant information it had and did the best it could. He related that the data for the year of 1970 came from ICC filings and reports. He also indicated that for the year 1970 the department wrote for a copy of Mobil’s Kansas Corporation Commission Report. Jones on cross-examination stated the department did not ask further information from Mobil or send the return back because of the time element. He said it was too late in the year. Jones testified the Director selected the Williams Brothers’ sale as a comparable company. The Director instructed Mr. Jones to capitalize gross revenues, less operation and maintenance expenses but before depreciation and deduction of income taxes, on line eight of the notices of assessment, and then to capitalize the amount on fine eight less income taxes on line nine. Mobil called Ronald F. Dwyer, the Director in 1970, as a witness on its behalf. Dwyer testified before the Board that all indicators of system value on the Mobil assessment notices were developed under his supervision; that he went over Mobil’s renditions, considered the information on them plus other information in the department; that he considered every indicator of value on the assess ment sheet, but did not apply any mathematical weights to any one of them, and arrived at market value through the judgment process. He said he made a different system appraisal betwen the crude and products pipelines of Mobil because of the peculiar risk factors in a products line, which are greater than in a crude line. Dwyer testified consideration of the risk factor is allowed under K. S. A. 79-5a04 (5); that the capitalization rate was developed under his direction; that he exercised his judgment on system value even getting down to odd dollars; and that he recognized the risk factor by lowering the system value. Mobil argues the Director (Dwyer) admittedly considered his line eight income approach in determining Mobil’s 1970 valuation. Mobil arrived at this conclusion by saying the Director claimed he considered each of the value indicators on the notices of assessed value and, without giving particular weight to any one of them, just “arrived through the judgment process at a fair market value.” Dwyer testified each approach to value has its strengths and its weaknesses, that certainly some indicators are more reliable than others, and that some are better in some situations and not in others. Mobil contends, when it attempted to develop the factual application of this principle with the Director before the Board, and to learn specifically the manner in which he utilized the various indicators in making his value determination, the state objected, citing Sebits v. Jones, 202 Kan. 435, 449 P. 2d 551, and the Board sustained the objection. Thus, it is argued by Mobil, the Board’s record is devoid of any factual expression by the Director, other than the “judgment process”, as to how the various indicators contributed to his value determination. Accordingly, Mobil requests this court to reconsider its holding in Sebits v. Jones, supra, either to clarify or to overrule it. It is argued the court’s holding, as it has consistently been applied by the Board in all of Mobil’s litigation before it, provides a virtually impregnable shield for administrative constructive frauds in all but the most outrageous instances. In Sebits v. Jones, supra, the plaintiffs sought to elicit information from state officials by depositions and interrogatories as to what considerations constrained them to their conclusions and decisions. The court said: “The integrity of the administrative process requires that an officer be protected from examination or interrogatories, when attempted by a party seeking relief from an administrative order, regarding the process by which the officer reached his conclusions.” (p. 438.) The federal courts clearly recognize the impropriety of probing the mental processes of an administrative official. (See, 2 Davis, Administrative Law Treatise, § 11.05 [1958] and the cases discussed therein.) In Sebits, supra, this court cited with approval Chicago, B. & Q. Ry. Co. v. Babcock, 204 U. S. 585, 27 S. Ct. 326, 51 L. Ed. 636, wherein the United States Supreme Court held it was “wholly improper” to cross-examine members of Nebraska’s State Board of Equalization and Assessment concerning their mental processes in determining certain tax assessments. The opinion observes that the policy considerations supporting the rules which preclude examination of jurymen, arbitrators, and judges concerning the motives and influences affecting their decisions are equally applicable to administrative officials. It has long been the rule in Kansas that the members of a jury may not be questioned, or evidence received, to show what influenced the mental processes of the jurors for the purpose of challenging a verdict. (See, Kincaid v. Wade, 196 Kan. 174, 410 P. 2d 333 and the cases cited therein); nor are the secret and unexpressed reasons which actuated a judge in making a decision admissible any more than are those of a juror. (Brinkerhoff v. Bank, 109 Kan. 700, 205 Pac. 779, reh. den. 111 Kan. 1, 205 Pac. 779.) In Chicago v. B. & Q. Ry. Co. v. Babcock, supra, the court stated as a reason for protecting an administrative officer: “. . . The Board was created for the purpose of using its judgment and its knowledge. State Railroad Tax cases, 92 U. S. 575; State v. Savage, 65 Nebraska, 714, 768, 769; In re Cruger, 84 N. Y. 619, 621; San Jose Gas Co. v. January, 57 California, 614, 616. Within its jurisdiction, except, as we have said, in the case of fraud or a clearly shown adoption of wrong principles, it is the ultimate guardian of certain rights. The State has confided those rights to its protection and has trusted to its honor and capacity as it confides the protection of other social relations to the courts of law. Somewhere there must be an end. . . .” (p. 598.) We hereby reaffirm Sebits v. Jones, supra, as being in accordance with the foregoing authorities. It should be noted the Director’s notices of assessed value, admitted into evidence before the Board, disclosed the requirement of 79-5a04 (4) was met. Utility operating income, after deduction of all income taxes, was specifically set forth and considered as required by the statute. This was at line number nine of the notices. It is true line number eight in the notices also set forth the utility operating income before deduction of income taxes. But there is nothing in the statute (79-5a04) which prohibits its consideration. In fact, 79-5a04 (5), supra, authorizes consideration of such other information or evidence as to value as may be obtained that will enable the property valuation department to determine the fair market value of the property of such companies. It is readily apparent capitalization of Mobil’s 1970 utility operating income, before deduction for income taxes, results in a valuation in the comparative area of the market comparison on line seven of the notices. This was based upon the actual sale of a similar company in the open market. At the hearing before the Board Dwyer was never examined by Mobil concerning his selection of the sale of Great Lakes Pipeline to Williams Brothers, and his use of that sale in arriving at his market value indicator; nor was Dwyer recalled by Mobil for reexamination after Dwyer’s staff appraisers explained they had used this sale at Dwyer’s direction, and after they also explained how they had used it. The admonition of the legislature in the fore part of 79-5a04, supra, is that the valuation of the property of all public utilities as defined by the act “shall be the fair market value thereof and what such property would sell for under conditions which usually govern the sale of property in that character.” (Emphasis added.) When the factors to be determined by the valuation officials as set forth in the statute are analyzed, it is apparent they are destined to be somewhat inconsistent. For example, original cost is one factor for consideration while another factor is original cost less depreciation, or replacement cost new less depreciation. Obviously, the determinations of value for these factors will not be the same or consistent with each other. The stringent requirements of the legislature in K. S. A. 79-503 (L. 1963, ch. 460, later amended by L. 1965, ch. 515) when Garvey Grain, Inc., v. MacDonald, 203 Kan. 1, 453 P. 2d 59, was decided, requiring assessing officials to determine “justifiable value” in assessing real property (see, Northern Natural Gas Co. v. Dwyer, supra), have been relaxed by the legislature in amending the statutes in several particulars. First, by K. S. A. 79-501 (L. 1969, ch. 433) assessors are now required to determine the “fair market value” in money of each parcel of real property; and public utilities are classified separately for assessment purposes under K. S. A. 79-5a01 (L. 1969, ch. 434, § 1). Assessors are now required to value the property, both real and personal, tangible and intangible, of all public utilities at the “fair market value” thereof pursuant to K. S. A. 79-5a04 (L. 1969, ch. 434 § 4). “Fair market value” has a well defined meaning in our free economy and in our case law, whereas “justifiable value” was a creature of statute having a precise statutory definition. The legislature defined “fair market value” in K. S. A. 79-503 (L. 1969 ch. 433, § 10) in substantially the same language as the court has defined it and as it is generally understood and accepted. The definition reads: “Fair market value in money shall mean the amount of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting, assuming that the parties thereto are acting without undue compulsion and that the property has been offered at the market place for a reasonable length of time. . . .” Second, the statutory factors to be considered in determining “justifiable value” for a public utility were more numerous and more precise than are the statutory factors to be considered in determining the “fair market value” of a public utility. Subparagraph “(5)” of 79-5a04, supra, permits consideration of: “Such other information or evidence as to value as may be obtained that will enable the property valuation department to determine the fair market value of the property of such companies.” Third, the concluding paragraph in K. S. A. 79-503 (L. 1965, ch. 515) specifically stated: “It shall be unlawful to determine justifiable value of real property in any manner other than authorized and provided for in this section. . . .” This mandate was dropped from K. S. A. 79-503 (L. 1969, ch. 433, §10) and was not included in K. S. A. 79-5a04 (L. 1969, ch. 434 § 4) requiring the valuation of public utility property at fair market value for assessment purposes. The legislature in K. S. A. 79-503 (L. 1969, ch. 433, § 10) specifically states: “The appraiser or assessor in arriving at fair market value in money may use different factors in determining the classifications best suited to arrive at fair market value in money as defined in this section. . . .” (Emphasis added.) Another point to be observed is that the legislature in 1971 amended 79-5a04 (4) by deleting “after deduction of all income taxes”. It is argued by the Director public utilities are the only taxpayers in Kansas entitled to this preferential treatment — the capitalization of utility operating income after deduction of all income taxes. Consideration of this factor was permitted by the legislature for public utilities for the year 1970 only. Other taxpayers are not entitled to any deduction for income taxes prior to the capitalization of net income. (See, K. S. A. 79-503 [g], L. 1965, ch. 515, § 1, and L. 1969, ch. 433, § 10.) While the Director in the case at bar testified before the Board that he considered all of the indicators of value prescribed by the legislature in 79-5a04, supra, it was not the function of the district court on appeal from the orders of the Board to ascertain whether the Director had done so, but whether the Board, after hearing all of the evidence and making findings of fact, had entered orders which were unreasonable, arbitrary, or capricious. Each of the orders of the Board, which are the subject of appeal in this action, indicate that the Board determined the assessment of Mobil’s property independently of the determination made by the Director. This is disclosed by the findings of the Board in each of its orders. The Board states in its finding concerning the crude pipeline: “That based on the evidence presented the correct assessed valuation of the appellant’s properties within Kansas is $1,797,650.00, the same as was determined by the Kansas Director of Property Valuation.” The Board’s finding concerning the products pipeline is substantially the same as the one above, except the valuation is $4,150,985.00. We find the orders of the Board dated August 25, 1970, appealed to the district court and the subject of appeal to this court, were not unreasonable, arbitrary or capricious. The orders were lawful in all respects, and the Board ascertained and determined the applicable statutory standards which were applied in determining the fair market value of Mobil’s Kansas pipelines which were subject to state assessment. The orders were based upon and in accordance with the evidence before the Board. The validity of the orders is not impaired by the entry at line number eight, under the heading “III. Income Approach”, in the notices of assessed value sent by the Director to Mobil, all of which was fully aired in the hearing before the Board. A thorough review of the record discloses no evidence that the Board has acted under the influence of improper motive, or acted in an unreasonable, arbitrary or capricious manner. The Board’s action in the valuation and assessment of Mobil’s Kansas pipeline properties falls well within the realm of administrative judgment. The Director requests this court to remand the case to the State Board of Tax Appeals for further consideration in connection with the 1970 assessment of Mobil’s Kansas pipelines on the ground of newly discovered evidence. In framing the issues the Director states: “Did the Court err in denying the state’s motion for a new trial when undisputed record evidence was before the Court, attached to the motion and verified, which showed that Mobil had inaccurately reported its inventory of property to the state in 1970 and the cost of that property, which records had been discovered in Mobil’s 1972 proceedings before the Board of Tax Appeals?” The Director says in his brief it is the judgment of the court rendered October 18, 1972, and the court’s subsequent order of December 6, 1972, overruling the state’s motion for new trial, to open findings, and enter judgment remanding these cases that give rise to this appeal. The Director contends these judgments conflict with administrative procedure and law, that the court cannot fix the value of property for the purpose of taxation, that the cases should have been remanded to the Board of Tax Appeals, particularly when the court has verified record evidence that the Board is litigating currently the subject matter before the court in subsequent proceedings and that the Board could make new findings that would be helpful to the court to render a just decision. We are informed by the parties that Mobil’s dispute with the Director’s valuation and assessment of its pipeline properties in the 32 counties of Kansas covers a span of four years, from 1970 to 1973 inclusive. A total of 256 protest cases filed pursuant to K. S. A. 79-2005 are pending in the district courts of the various counties and appeals to the State Board of Tax Appeals from the Director’s assessment of Mobil’s pipeline properties for the years 1971, 1972 and 1973 are pending before the board. The Director states in his brief: “A case was filed on August 27, 1973, in the District Court of Shawnee County, Kansas, Case No. 123,016 titled Mobil Pipe Line Company v. Harold C. Rohmiller, Director, and the five members of the Board of Tax Appeals. This was a petition for an injunction against the Order of that Board dated July 24, 1973, directing a limited audit or study of Mobil’s books and records to get inventory, cost and income information in the determination of the assessed value of Mobil Pipe Line for the years 1971 and 1972. These are the very cases mentioned in the Lyon County case herein appealed. The Order directs an auditor to check Mobil’s books, to secure correct annual original cost figures from 1968 through 1972, because the Board has considered such figure a “bench mark’ appraisal approach, to get the Mobil record information about annual additions and retirements so that the Board can perform a reproduction cost less depreciation by ‘trending’ original cost, and some income information from Mobil’s books which the Board deemed necessary. Mobil would deny the Board this vital information. The relevancy is that Mobil’s 1970 tax rendition accuracy is involved.” This court is requested to take judicial notice pursuant to K. S. A. 60-409 (c) o£ the above case now pending in the Shawnee County District Court. Assuming the Director has complied with the statute and this court is required to take judicial notice of the above proceeding, it does not follow that this court must remand the case to the Board of Tax Appeals. In our opinion the record here submitted is insufficient to warrant a remand of this case to the Board of Tax Appeals concerning the 1970 ad valorem assessment of Mobil’s Kansas pipeline properties. If the Director has discovered fraud on the part of Mobil in making its renditions for the year of 1970 to the Kansas Property Valuation Department, the Director has an adequate remedy. (See, K.S.A. 79-1427.) The judgment of the lower court is reversed with directions to approve the orders of the State Board of Tax Appeals assessing Mobil’s Kansas pipeline properties for the year 1970.	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The opinion of the court was delivered by Prager, J.: This is an action brought to recover damages for personal injuries received in an automobile collision. The plaintiff-appellant claims that the accident was the result of negligence on the part of two physicians in prescribing drugs to the plaintiff. The trial cotut sustained a motion for summary judgment filed on behalf of the defendant-appellee, Albert C. Harms, M. D. The facts in the case are not greatly in dispute and are essentially as follows: The plaintiff, Evelyn Stovall, then age 48, was involved in an automobile collision on February 2, 1970. Following the accident she called her attorney and told him’ she had been hurt in the collision and that her family doctor had passed away. He recommended that she see the defendant, Dr. Albert C. Harms. The following day Mrs. Stovall consulted with Dr. Harms at his office in Overland Park. After hearing her complaints Dr. Harms had her admitted to the Shawnee Mission Hospital that same day. Dr. Harms diagnosed Mrs. Stovall’s condition as an acute strain of her upper and lower back. Mrs. Stovall remained in the hospital until February 16, 1970. Thereafter Dr. Harms treated her in his office during February and March 1970, but she made little improvement. On March 30, 1970, Dr. Harms rehospitalized Mrs. Stovall in Shawnee Mission Hospital where she remained until April 9, 1970. Because Mrs. Stovall’s back condition did not seem to be improving Dr. Harms had her examined by Dr. Whitehead, an orthopedic specialist. Dr. Harms also decided to call in Dr. Iturralde, a psychiatric specialist, for consultation. Dr. Harms and Dr. Iturralde both testified that Dr. Iturralde first saw Mrs. Stovall in the hospital on March 31, 1970. Mrs. Stovall in her deposition stated that she did not specifically recall seeing Dr. Iturralde in the hospital but that she did see several doctors and he may have been one of them. According to Dr. Iturralde’s hospital notes Mrs. Stovall was suffering from a chronic anxiety reaction. Dr. Harms continued to treat Mrs. Stovall while she was in the hospital and last saw her on April 9, 1970, the date she was' discharged. The parties are in agreement that Dr. Harms suggested to Mrs. Stovall that she consult with Dr. Iturralde. There is some disagreement as to what Dr. Harms told Mrs. Stovall. Dr. Harms testified in his deposition that he informed Mrs. Stovall that Dr. Iturralde was a psychiatrist and advised her to go to him for treatment. Mrs. Stovall vigorously denies that Dr. Harms informed her that Dr. Iturralde was a psychiatrist. She thought he was some kind of doctor that could treat her for her back. Following Mrs. Stovall’s discharge from the hospital on April 9, 1970, she called Dr. Harms’ office to inquire about Dr. Iturralde’s address which was given her. Mrs. Stovall first saw Dr. Iturralde in his office on April 11, 1970. Mrs. Stovall testified that at that time she could tell from his questions that he was a psychiatrist. She stated that when he started asking a lot of silly questions she put two and two together and figured out what he was. Mrs. Stovall had worked at the Osawatomie state hospital for two years where she had been around psychiatrists. Following the first consultation she returned to Dr. Iturralde for treatment on April 17, April 24 and May 1, 8, 15 and 22. On May 26, 1970, Mrs. Stovall was involved in another automobile accident which was: the basis for the litigation now before the court. On April 3, 1972, Mrs. Stovall filed this action against Dr. Iturralde and Dr. Harms. The substance of her claim was that the automobile accident of May 26, 1970, was caused by drugs prescribed for her by Dr. Iturralde. The basis of her claim of negligence against Dr. Iturralde was that he prescribed for her use an excessive quantity of highly dangerous drugs, that he failed to inform her of the risks involved in driving a motor vehicle while using the drugs and furthermore that Dr. Iturralde negligently warranted that it was safe for her to drive a motor vehicle while she was taking the drugs. The basis of her claim of liability against Dr. Harms was that Dr. Harms failed to inform her that Dr. Iturralde was a psychiatrist or the nature of his treatment, that Dr. Harms warranted the treatment of Dr. Iturralde in conjunction with his own treatment and that Dr. Harms failed properly to inform the plaintiff sufficiently to enable her to make a judgment as to whether to accept the recommended treatment of Dr. Iturralde. Dr. Harms promptly filed his answer and the parties then proceeded to take discovery depositions. The parties were afforded an adequate time to complete their discovery. The depositions of Mrs. Stovall, Dr. Iturralde and Dr. Harms were taken on November 16, 1972. On January 23, 1973, the defendant Harms filed a motion for summary judgment. On February 15, 1973, the motion of Dr. Harms for summary judgment was presented to the court. The evidentiary basis for the motion for summary judgment was the depositions of the parties. Dr. Harms contended drat the undisputed evidence contained in the depositions failed to show any reasonable theory of liability against Dr. Harms in favor of the plaintiff. Counsel for the plaintiff did not request time to take additional depositions or to provide affidavits or other evidence in opposition to the motion for summary judgment. The trial corut adopted findings of fact and conclusions of law, sustained the motion of the defendant, Dr. Harms, and granted summary judgment in his favor. The plaintiff has appealed that order to this court. It should be emphasized that the plaintiff’s claim against Dr. Iturralde is not involved on this appeal and remains for determination in the district court. The basic contention of the plaintiff Evelyn Stovall on this appeal is that the trial court prematurely granted summary judgment in favor of the defendant Dr. Harms. She contends that there were genuine issues as to material facts present in the case which precluded summary judgment. Plaintiff maintains that the district court erred in failing to give her the benefit of all inferences to be drawn from the evidence, in failing to construe the evidence in a light most favorable to her as nonmoving party and in failing to construe the pleadings in her favor. The defendant Dr. Harms contends to the contrary that there is no genuine issue as to any material fact and that, on the basis of the undisputed evidence contained in the depositions, the defendant Harms was entitled to summary judgment as a matter of law. The rules governing the propriety of summary judgment under K. S. A. 60-256 are stated in Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770 and in Ebert v. Mussett, 214 Kan. 62, 519 P. 2d 687. In Ebert we stated as follows: “Generally, summary judgment may be granted when the record before the court shows conclusively there remains no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court that a party cannot prevail upon a trial will not warrant summary judgment if there remains a dispute as to a material fact. A material fact is one on which the controversy may be determined. The manifest purpose of a summary judgment is to avoid trial where there is no real issue of fact. In considering a motion for summary judgment, the court should not attempt to determine factual issues, but should search the record to determine whether factual issues do exist. Where there is a reasonable possibility of their existence, summary judgment will not lie. The court should give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration. . . (p. 65.) In Ebert we also emphasized the responsibility of a party opposing summary judgment to take steps to provide evidence by way of depositions or affidavits in opposition to the motion or if necessary to request time to make additional discovery. The nonmoving party can not rely solely upon the allegations in his pleadings. He must come forward with something of evidentiary value to justify his position. The trial court should afford to the parties every reasonable opportunity to make discovery and to present their evidence in support of and in opposition to a motion for summary judgment. It is important that the trial court state in the record with particularity the evidentiary basis upon which the motion for summary judgment is to be determined. When this is done the parties cannot have any misunderstanding as to the evidentiary basis for the court’s action and cannot thereafter complain that they were not given an opportunity to provide relevant evidence on the motion. In the case presented here the plaintiff Stovall does not contend that she has additional evidence to present in opposition to summary judgment nor does she claim she was denied a reasonable opportunity to obtain additional evidence. Our problem is to determine whether or not the trial court erred in granting summary judgment on the basis o£ the evidence presented in the three discovery depositions of the parties. Mrs. Stovall based her claim of liability against Dr. Harms on three theories: (1) That the defendant Dr. Iturralde was the agent of Dr. Harms with respect to the treatment of the plaintiff and therefore Dr. Harms is liable on the theory respondeat superior; (2) that Dr. Harms breached his duty to inform plaintiff so that she could intelligently consent to treatment by Dr. Iturralde; and (3) that Dr. Harms warranted the treatment of Dr. Iturralde to the plaintiff in conjunction with his own treatment. The theory of warranty of treatment is suggested in the petition filed by the plaintiff but has not been argued in the plaintiff’s brief on this appeal. The plaintiff has not submitted any authority in support of such a theory and, if ever seriously advanced, we deem that it has been abandoned. Is there a reasonable theory on which Dr. Harms may be held hable for any negligence on the part of Dr. Iturralde in prescribing drugs for Mrs. Stovall? The evidence is undisputed here that it was Dr. Iturralde not Dr. Harms, who prescribed drugs for Mrs. Stovall just prior to her accident on May 26, 1970. Ordinarily the liability of a physician or surgeon for damages for injuries suffered by a patient in the course of treatments administered is predicated on the failure of die physician or surgeon personally to exercise the requisite degree of skill. However, a physician or surgeon may be held answerable in some circumstances where he is free from personal negligence in the actual treatment of or operation on the patient as where the actual negligence is that of some third person for whose acts the physician or surgeon may be answerable. A comprehensive annotation on this subject citing cases from many jurisdictions may be found in 85 A. L. R. 2d 889. This annotation points out that an attempt is often made to hold a physician hable for the malpractice of another physician, although he himself may be free from personal neghgence in the actual treatment of or operation on the patient. The theory of such liability has been based on the doctrine of respondeat superior, agency, concerted action for a common purpose, ór neghgence in the selection of the third person. We have held, that a physician or surgeon is hable for the neghgence or malpractice of another physician or surgeon acting as his agent, employee or assistant. (Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093; Voss v. Bridwell, 188 Kan. 643, 364 P. 2d 955.) It is generally held that a physician who calls in or recommends another physician or surgeon is not liable for the other s malpractice, at least where there was no agency or concert of action, or no negligence in the selection of the other physician or surgeon. Physicians independently employed or acting independently in the case are not vicariously liable, unless the one observed or, in the exercise of ordinary care, should have observed the wrongful act of the other. On the other hand, vicarious liability has been recognized where the physicians are jointly employed or acting jointly in the case. There may be joint liability where concurrent acts of neglience of two physicians result in injury to the patient. (Cassity v. Brady, 182 Kan. 381, 321 P. 2d 171.) In Cassity we cited Rose v. Sprague, 248 Ky. 635, 59 S. W. 2d 554, where the Kentucky court held that where physicians are engaged and acting independently of each other in diagnosing and treating a patient, during different and distinct periods of time, each is only liable to his patient for his own wrong or negligence, but not for the negligence of the other, even though neither of them effects a cure of the patient’s ailment. In the case before us here Dr. Harms called in Dr. Iturralde as a psychiatric specialist to examine Mrs. Stovall and recommended to Mrs. Stovall that she accept treatment from him. Nowhere in the pleadings, or in the argument presented in the trial court or in this court, or in the evidence, is there a suggestion that Dr. Harms was negligent in selecting Dr. Iturralde as a psychiatric specialist. The deposition of Dr. Ituiralde shows that he spent his early life in Argentina where he received his medical education. He took his internship in Chicago and received his psychiatric training at Washington University in St. Louis. He also received post-graduate training at Harvard Medical Center for a year. He was employed by the Veterans Administration for a period of time and a part of his job was to teach psychiatry at the Kansas University Medical Center. Dr. Iturralde has been licensed to practice medicine in Johnson county since 1959 and has specialized in psychiatry during that time. The depositions disclosed that on a number of occasions Dr. Harms has called in Dr. Iturralde as a psychiatric consultant. There is simply nothing in the record to show that Dr. Iturralde is not a fully qualified practicing psy chiatrist or that Dr. Harms was negligent in recommending him to Mrs. Stovall. Furthermore the record does not indicate that there was a concerted action by Dr. Iturralde and Dr. Harms during the time Mrs. Stovall was treated by Dr. Iturralde. Dr. Harms last saw Mrs. Stovall on April 9, 1970, the day she was discharged from the hospital. Thereafter she was treated by Dr. Iturralde in his office from April 11, 1970, until the automobile accident occurred on May 26, 1970. There was some evidence in the case that when called in as a consultant Dr. Iturralde would submit a report to Dr. Harms when he had finished his examination or treatment and that sometimes patients would be returned to Dr. Harms for further treatment. Mrs. Stovall testified that she had faith in Dr. Harms and followed his directions in going to Dr. Iturralde and that she expected to return to Dr. Harms for a full release after her treatment with Dr. Iturralde had been completed. Mrs. Stovall stated that she considered Dr. Harms to be her “managing physician.” Dr. Harms testified that on completion of the treatment by Dr. Iturralde he might well have resumed treatment of Mrs. Stovall or recommended that she be treated by the orthopedic specialist, Dr. Whitehead. Roth Dr. Iturralde and Dr. Harms testified categorically that they were independent practicing physicians and that Dr. Harms had absolutely no control over Mrs. Stovall’s treatment by Dr. Iturralde. We find nothing in the evidence to justify a claim that Dr. Harms and Dr. Iturralde were concurrently engaged in the treatment of Mrs. Stovall at the time the automobile accident occurred on May 26, 1970. It is also clear that the trial court was absolutely correct in holding that Dr. Iturralde was not the agent of Dr. Harms. In Voss v. Bridwell, supra, we emphasized that in determining whether or not a person is the agent or servant of another it is necessary that he not only be subject to the latter’s control or right of control with regard to the work to be done and the manner of performing it, but that this work is to be performed on the business of the master or for his benefit. Actual control, of course, is not essential; it is right to control which is determinative. Here the evidence is undisputed that Dr. Iturralde was a licensed medical doctor practicing his specialty of psychiatry. Dr. Harms as a general practitioner had no control whatsoever with regard to the treatment to be provided by Dr. Iturralde or the manner of perform ing it. Furthermore such treatment by Dr. Iturralde was to be performed for the benefit of Mrs. Stovall and not on behalf of Dr. Harms. Dr. Iturralde testified that he had no intention of sending the bill for his services to Dr. Harms; that it was his custom to send it directly to the patient or his insurance company. In view of the undisputed evidence as set forth above we have concluded that the trial court was entirely correct in holding that Dr. Harms could not be held vicariously liable for any negligence on the part of Dr. Iturralde on the basis of the doctrine of respondeat superior or agency. The plaintiffs second theory of liability asserted against Dr. Haims is that Dr. Harms breached his duty to inform Mrs. Stovall of the risks and dangers involved in the course of the treatment she was to undergo with Dr. Iturralde. The rule as to informed consent was stated as follows in Funke v. Fieldman, 212 Kan. 524, 512 P. 2d 539: “In the absence of an emergency a physician or surgeon has a legal obligation to make a reasonable disclosure to bis patient of the nature and probable consequences of the suggested or recommended treatment, and to make a reasonable disclosure of the dangers within his knowledge which are incident or possible in the treatment he proposes to administer in order that his patient will have a basis to make an intelligent informed consent to the proposed treatment. But the duty of the physician is limited to tiróse disclosures which a reasonable medical practitioner would make under the same or similar circumstances.” (¶ 3.) “What is a reasonable disclosure upon which an informed consent may rest depends upon the facts and circumstances in each case.” (¶ 4.) To the same effect are Tatro v. Lueken, 212 Kan. 606, 512 P. 2d 529; and Collins v. Meeker, 198 Kan. 390, 424 P. 2d 488. In this case Mrs. Stovall complains that Dr. Harms breached his duty to her by failing to inform her that he was referring her to a psychiatrist. Dr. Harms in his testimony stated that he did fully advise Mrs. Stovall of that fact. Assuming for purposes of summary judgment that Dr. Harms failed to so advise Mrs. Stovall, the evidence is undisputed that Mrs. Stovall had full knowledge that Dr. Iturralde was a psychiatrist when she first visited his office on April 11, 1970, and that she returned to him for treatment on six separate occasions prior to her automobile accident on May 26, 1970. Under the circumstances it cannot reasonably be contended that any failure on the part of Dr. Harms to advise Mrs. Stovall that Dr. Iturralde was a psychiatrist had any causal connection with the injury which she suffered in an automobile accident on May 26, 1970. Furthermore it does not seem reasonable to us that the doctrine o£ informed consent should be interpreted to require a general practitioner, referring his patient to a psychiatric specialist, to advise the patient of risks and dangers incident to the psychiatric treatment in the absence of uiiusual circumstances not present here. To hold to the contrary would impose an intolerable burden upon doctors who practice general medicine. For the reasons set forth above the judgment is affirmed.	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The opinion of the court was delivered by Owsley, J.: Defendant William Carter appeals from conviction of two counts of delivering barbiturates in violation of K. S. A. 1971 Supp. 65-2602 (1) (now K. S. A. 65-4126 [a]), and two concurrent sentences of one to twenty years imposed therefor. The evidence against the defendant, in the form of testimony of Guy S. Teeselink and Terry L. Stevens, special narcotics agents for the Kansas Bureau of Investigation, is as follows: They went to Junction City to purchase drugs on February 15, 1972, and picked up two individuals in downtown Junction City, known to the agents only as Gary and Clarence. They directed the agents to Shorty’s Record Shop located in a residence at 536 West 12th. At the shop they were introduced by Gary and Clarence to an individual whom the agents later identified in court as defendant Carter. The agents testified they asked Carter if he had any “reds;” he reached into his pocket, removed three tablets from a bottle, and handed them to the agents. They gave him three one dollar bills in payment. The agents returned to 536 West 12th on February 16, 1972; Carter answered the door and asked if they were there to buy “grass.” The agents replied they were there to buy more “reds.” Carter went into the bedroom and came back with four tablets saying the extra was one he had promised them before. The agents paid him three one dollar bills. All the tablets were identified by K. B. I. laboratory tests as containing secobarbital, a derivative of barbituric acid. Defendant and others were arrested on February 18, 1972, during a drug raid on 536 West 12th. Defendant testified he had never seen agents Teeselink and Stevens before the night of his arrest. Defendant denied selling or delivering drugs from a bottle in his possession. He testified he had made deliveries of drugs to buyers at the record shop, but he had acted merely as relay from sellers in the back room of the shop and had not kept any payments of money. Defendant could not identify any of the sellers in the back room for whom he admitted relaying drugs. At the close of the state’s evidence, defendant moved for a directed verdict of acquittal, alleging the state’s evidence proved he was entrapped as a matter of law since no previous narcotics convictions or sales were proved against him. This contention has no merit. Where some evidence is offered to support the defense of entrapment, the question of fact is raised whether the intent to engage in the offense originated in the mind of the defendant or was instigated by officers or agents of the state. The question is one of intent, and failure to show evidence of past convictions or sales of narcotics as evidence of intent does not prove entrapment as a matter of law. (State v. Reichenberger, 209 Kan. 210, 495 P. 2d 919; State v. Fitzgibbon, 211 Kan. 553, 507 P. 2d 313.) The record shows the question of entrapment was properly submitted to the jury with appropriate instructions. Defendant submits as further ground to support his motion for directed verdict of acquittal that the state has not made a prima facie case against him because it failed to prove he was not within the exceptions to the general prohibition of K. S. A. 1971 Supp. 65-2602 (1). The statute which defendant is charged with violating reads as follows: “It shall be unlawful “(1) To deliver any drugs unless: (A) Such drug is delivered by a pharmacist, or his authorized agent, in good faith upon prescription and there is affixed to the immediate container in which such drug is delivered a label bearing (a) the name and address of the owner of the establishment from which such drug was delivered; (b) the date on which the prescription for such drug was filled; (c) the number of such prescription as filed in the prescription files of the pharmacist who filled such prescription; (d) the name of the practitioner who prescribed such drug; (e) the name and address of the patient, and if such drug was prescribed for an animal, a statement showing the species of the animal; and (f) the direction for use of the drug and cautionary statements, if any, as contained in the prescription; and “(B) In the event that such delivery is pursuant to telephonic order, such prescription shall be promptly reduced to writing and filed by the pharmacist; or “(C) Such drug is delivered by a practitioner in good faith and in the course of his professional practice only.” The trial court correctly denied defendant’s motion for two reasons. First, defendant’s contention has since been disapproved by this court in State v. White, 213 Kan. 276, 515 P. 2d 1081, Syl. ¶ 3. A defendant has the burden of introducing defense evidence that brings him within an exception or exemption in the statute creating the offense, where such exception or exemption is not part of the description of the offense. Second, as the trial court pointed out, K. S. A. 65-2517 (now K. S. A. 65-4136) makes it unnecessary for the state to negate any exceptions to the prohibition contained in the Uniform Narcotic Drug Act, K. S. A. 65-2501, et seq. (now the Uniform Controlled Substances Act, K. S. A. 65-4101, et seq.). K. S. A. 65-2517 provides as follows: "In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this act, it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.” Defendant contends K. S. A. 65-2517 is an unconstitutional denial of due process because it shifts the burden of proof to the defendant. Constitutionality of this statute has not been directly challenged. In State v. Braun, 209 Kan. 181, 495 P. 2d 1000, we pointed out the statute is procedural and merely codifies prior case law to the same effect. The term 'burden of proof” is often loosely and inaccurately used to convey two different meanings. Its primary meaning describes the burden of persuasion which our concept of due process places upon the state to prove a criminal charge. Every plaintiff bears the burden of persuasion. This primary meaning has other synonyms. It has been called the duty of establishing the truth of a given proposition; i. e., the defendant’s guilt as charged in a criminal case. Risk of non-persuasion is another primary definition. (29 Am. Jur. 2d, Evidence, § 123, pp. 154, 155.) The secondary meaning of burden of proof and the meaning which we ascribe to it in K. S. A. 65-2517, is defined as the obligation resting upon a defendant to meet with evidence a prima facie case against him. It can also be defined as the duty of going forward with the evidence or the burden of evidence. This is a procedural obligation, as pointed out in Braun, and the obligation or duty to go forward with the evidence can shift from party to party during the course of a trial. (1 Jones on Evidence, 6th Ed., Card, § 5.2.) Ry enacting K. S. A. 65-2517 and its successor, K. S. A. 65-4136, the legislature has made it clear that the statutory exceptions to the general prohibition against delivering drugs must be asserted as affirmative defenses, and negative proof of these exceptions is not necessary to make a prima facie case against defendants charged -under the act. As his final point on appeal, defendant contends the trial court created prejudicial error by admitting hearsay evidence. In their testimony, agents Teeselink and Stevens repeated portions of conversation with Gary and Clarence to the effect that the seller to whom they were introduced was named Garter. Gary and Clarence were not present for cross-examination at the trial and the conversation was not overheard by or in the presence of defendant. The court 'admitted the description of the act of introduction, but instructed the jury to disregard testimony that Gary and Clarence told the agents at the time of introduction the sellers name was Carter. In view of the court’s admonition to disregard testimony relating the conversation, we find no prejudicial error. Defendant states another point on appeal, but does not brief it, to the effect the trial court erred in not granting his motion for a new trial based on the foregoing alleged errors. We have examined the record and find the court did not err in denying his motion for new trial for the reasons previously set forth. We find no error in the trial justifying reversal and the judgment of the trial court is affirmed.	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The opinion of the court was delivered by Fontron, J.: This action arises out of a peculiar accident occurring August 26,1971, on a bridge in Labette County. In her petition the plaintiff, Katherine A. Kirk, nee Bachman, seeks to recover damages in the amount of $50,000 for personal injuries. The jury, in its wisdom, returned a verdict for $45,000. The defendant, Beachner Construction Company, Inc., sometimes referred to as Beachner, has appealed. Quoting from its brief, Beachner “simply desires a new trial on the issue of damages alone, or in the alternative requests the court to reduce the judgment to a reasonable sum.” Thus, we are not required to deal with the question of liability and as to that will say, only, that there was substantial evidence of negligence on the part of the defendant. The sole issue before us for decision is framed by the defendant in these words: “Appellant should have a new trial on the issue of damages alone, or should have tire judgment reduced to a reasonable sum, because the verdict was given under the influence of passion and prejudice in that the verdict was grossly excessive and was contrary to the evidence.” Now for some facts. The accident happened as plaintiff’s car and Beachner’s truck passed each other on a narrow bridge. The truck was pulling a lowboy trailer loaded with a heavy crane. The right side of the crane bumped into the side of the bridge as it came opposite the plaintiff and then toppled over on her car. The crane hit the car directly in front of the windshield. Pictures taken of the damaged car would cause any viewer to marvel that the driver could have come out alive. At the time of the wreck the plaintiff was unmarried and attending Pittsburg State College, starting her last semester. She was returning to Pittsburg from her first day of practice teaching at Parsons when the crane crashed into her life. Due to the injuries she received, which will be described in some detail later, Mrs. Kirk was forced to lay out of school for the fall semester, and finally graduated in the spring of 1972. She married Mr. Kirk the following August, and at the time of trial, November 14, 1972, was living with her husband in El Paso where she was teaching part time in the public schools. Expenses attributable to the accident, including medical and hospital costs, damage to clothing, etc., amounted to $2,077.88. In addition, Mrs. Kirk lost a semester of teaching which resulted in a loss of earnings estimated to be $3100 at the current salaries then being paid teachers. Going back to the wreck: As Beachner’s crane crashed into her car, the plaintiff was showered with glass. When help arrived, blood was coming from her face and arms and she was crying hysterically. She was taken to a hospital where a Pittsburg physician, Dr. Pogson, made an examination. He described her as being in pain; as having sustained cuts, lacerations and bruises; and having stiffness of the neck, of the lumbar back, and of the hips. She was discharged from the hospital, on crutches, two weeks later. Dr. Pogson testified that the plaintiff had a congenital condition of the lower back, known as transitional vertebra, which would prolong her recovery from the lumbosacral sprain received in the accident. When he last saw her in December, 1971, in connection with her injuries, she still had complaints and hadn’t made much improvement in the last three or four visits. Dr. Pogson said she would tend to have recurrent back problems but not as a result of the accident. Mrs. Kirk consulted two orthopedic specialists as the days of her travail lengthened. On four occasions, October 25, 1971, November 5, 1971, December 28, 1971, and July 5, 1972, she visited Dr. Cline D. Hensley, of Wichita, whose diagnosis was transitional lumbosacral vertebra, acute low back sprain, and some anxiety reaction. He advised her to obtain a corset or back support, to discard the crutch for a cane, and to take prescribed back exercises. He testified her back pain relates to preexisting low back weakness, making it more prone to strain and that the accident was the precipitating factor causing it to begin at this time. He stated plaintiff was not aware of her congenital defect, but it was not uncommon to find patients who do not experience symptoms until they become involved in a traumatic accident. He anticipated plaintiff would be subject to intermittent low backache, much as she had been, and he doubted that she should bowl or water ski or do anything of that nature. Dr. Alexander Lichtor of Kansas City, Missouri, examined Mrs. Kirk on December 29, 1971. He felt that she had injury to tissues around her back which had not healed and were painful; that when healing occurred scar tissue would be left; that this would reduce elasticity and that painful symptoms could be brought on again. In his opinion “the accident described was a medically competent producing cause for the condition which I found this woman to be suffering.” He felt her condition was. chronic and she would have recurrent pain, both in the back and in the wrist. As to the latter, Dr. Lichtor found irritation to and tenderness in the median nerve in the left wrist — carpal tunnel syndrome, he termed it — and that excessive use of the wrist should be avoided. This injury the doctor also related to the accident and he said some people require surgical repairs. A third specialist, Dr. D. L. Yancey, from Springfield, Missouri, testified on behalf of the defendant. His findings and conclusions differed somewhat from those of his brother specialists on the other side of the case, a phenomenon which we have observed is not uncommon in personal injury cases. However, even Dr. Yancey would concede that scar tissue is not as elastic as tissue which is normal, and that persons with residual back weakness are more easily predisposed than others to future injury and recurrent strains. Our rule relating to excessive verdicts is not obscure. It has frequently been discussed and is succinctly stated in Langley v. Byron Stout Pontiac, Inc., 208 Kan. 199, 202, 491 P. 2d 891: "When a charge of excessive verdict is based on passion or prejudice of the jury and depends for support solely on the amount of the verdict, the trial court will not be reversed for refusing a new trial unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court. (Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P. 2d 605; Neely v. St. Francis Hospital & School of Nursing, 188 Kan. 546, 363 P. 2d 438; Slocum v. Kansas Power & Light Co., 190 Kan. 747, 378 P. 2d 51.)” See, also, Riggs v. Missouri-Kansas-Texas Rld. Co., 211 Kan. 795, 802, 508 P. 2d 850; Barnes v. St. Francis Hospital & School of Nursing, 211 Kan. 315, 321, 507 P. 2d 288; Ketner v. Atchison T & S. F. Rly. Co., 212 Kan. 453, 454, 510 P. 2d 1220; Pike v. Roe, 213 Kan. 389, 390, 516 P. 2d 972. But the rule, like many others in the field of law, is more difficult to apply than to state. It is not open to doubt that a verdict so excessive and disproportionate to the damages sustained as to be unconscionable would be abhorrent to the law. The difficulty, of course, when it comes to applying the rule, is simply this: What is unconscionable is not subject to precise and unequivocal definition. What is shocking to the conscience depends upon the amount of the verdict as related to the facts and circumstances of a given case. In Riggs v. Missouri-Kansas-Texas Rld. Co., supra, we said: “. . . We have held on many occasions that there is no fixed or absolute standard for measuring the excessiveness or inadequacy of a verdict in a personal injury action. . . .” (p. 802.) An examination of the numerous cases challenging the sufficiency, or insufficiency, of a verdict reveals no simple, symmetrical pattern or design. Each case seems to stand on its own facts. We deem it fruitless to attempt a reconciliation of the various amounts which have or have not been held excessive, and we shall undertake no such effort. Perhaps no better explanation can be given for the lack of dollars and cents uniformity in our decisions than is expressed in Domann v. Pence, 183 Kan. 135, 325 P. 2d 321: “. . . Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. . . .” (p. 141.) We have attempted to appraise the reasonableness of this verdict in the light of what Mrs. Kirk has already experienced in disability, in expense, and in pain, suffering and anguish, and what her doctors say she may reasonably expect to experience in the future in those same areas. In this approach we recognize as we said in Domann, that “No verdict is right which more than compensates — and none is right which fails to compensate.” The times in which we live are highly inflationary, with constantly climbing prices and a continually shrinking dollar. It is against this sort of a background that we must consider the dictates of conscience. Beachner suggests in his brief that the verdict “is at least double, and probably triple the amount” which would substantially compensate Mrs. Kirk for her injuries. We cannot join in this view. Mrs. Kirk was still unable to teach on a full-time basis at the time of trial and, according to competent medical tetstimony, faced a future of recurrent pain, of avoiding back strain, and of giving up sports, an area in which she had been active. She had, it is true, a congenital back condition, which had been latent and unknown, but was triggered into painful symptoms by the accident. We have held that aggravation of a pre-existing condition is compensable in an action to recover personal damages from a tort-feasor. (Knoblock v. Morris, 169 Kan. 540, 220 P. 2d 171; Rowe v. Maule Drug Co., 196 Kan. 489, 413 P. 2d 104.) The same rationale is found in compensation cases, and in Williams v. Benefit Trust Life Ins. Co., 200 Kan. 51, 434 P. 2d 765, it was also applied in an action based on an accident policy. An appellate court should be cautious in substituting its judgment for that of the jury which heard the case. Mindful of this admonition, we cannot say that the verdict, although it may be on the generous side, is so excessive as to shock the conscience or indicate passion and prejudice on the part of the jury. The judgment is affirmed.	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Per Curiam: This is an original proceeding in discipline against Jerry J. Berkley and Paul D. Berkley, the respondents. The board of law examiners found that the respondents were in violation of DR 5-101 (A) (209 Kan. lxxxii) and DR 1-102 (A) (5) (209 Kan. lxxvi). The respondents are engaged in the dual professions of banking and law in the city of Downs, Kansas, population approximately 1,500. They are owners of the State Bank of Downs and of the Harrison Brothers Insurance Agency. They primarily confine their legal practice to matters in the probate court of Osborne County. The board found that during the disposition of certain estates the respondents aoted either as executors, administrators or attorneys for the executor or administrator. That during the disposition of these same estates, there was a consistent pattern of withdrawing estate assets from interest bearing accounts for placement into non-interest bearing demand deposits in the respondents’ bank. The board also found that in several of the same estates, fiduciary bonds were purchased through the Harrison Brothers Insurance Agency, in which the respondents are owners. The board concluded that a conflict of interest existed and that tire respondents had failed to notify clients or interested parties of the conflict. Apparently the original complaint filed against the respondents charged them with the dual praotice of law and banking at or about the time Grindol, Wesley and Klassen were charged with the same offenses. (See, State v. Klassen, 207 Kan. 414, 485 P. 2d 1295; and State v. Grindol, 207 Kan. 428, 485 P. 2d 219.) After reviewing the records in these cases the court held there was nothing unethical per se for a practicing lawyer to be an officer and a director of a bank so long as he adheres to the disciplinary rules set forth in the Code of Professional Responsibility. Sometime after the original complaint was filed the assistant attorney general notified the respondents that the hearing before the “three-member panel of the Board, pursuant to Rule 205 of the Supreme Court” would be held February 23, 1972. The notice further advised: “The complaint is that you are maintaining a dual practice of law and banking in such a way as to violate the Canons of Ethics and/or the Code of Professional Responsibility prohibitions against ADVERTISING and/or SOLICITING, either directly or indirectly.” (Emphasis added.) The foregoing notice is the only notice the respondents ever received concerning the nature of the charges against them in this proceeding. It was the cfficial notice under which the hearing was conducted. The matter was heard on December 19 and 20, 1972, in Salina, Kansas, before a hearing panel of the State Board of Law Examiners. In his opening statement to the hearing panel, the attorney general stated: “What we would like to show and what we will attempt to show is by the mere fact of their ownership, the way they operate both the bank and the insurance agency, it not only tends to lead to solicitation, but also leads to conflicting situations which cannot be reconciled under the Code of Professional Responsibility. . . . It is our position that once they get into this position a natural conflict arises. . . .” The disciplinary rules the hearing panel found the respondents to have violated read: “DR 5-101 (A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.” “DR 1-102 (A) (5) Engage in conduct that is prejudicial to the administration of justice.” As a result of its findings that the respondents were in violation of the foregoing disciplinary rules the hearing panel recommended public censure, although the complaint did not include charges that the respondents were violating either of the above disciplinary rules. The board of law examiners thereafter adopted the following motion: “The findings of the Hearing Panel were adopted as the report of the Board, but the recommendation of public censure was amended to read: ‘That the court make and announce such decisions as it deems proper for the guidance of the members of the bar.’ ” Regarding the action of the board of law examiners, the chairman did not vote, one member was absent, and two members dissented. Thus, only three members of the seven member board supported the report. Thereafter the respondents took exception to the findings in the report and objected to their names being used in a disciplinary proceeding for the purpose of making rules. Inherent in the findings of the board of law examiners, as adopted, is a finding that the respondents were not guilty of advertising or soliciting, the offenses with which they were charged. Furthermore, a review of the transcript indicates there is no evidence whatever to support either of these charges. Prior to the hearing before the panel the respondents were never charged or notified that they were charged with a violation of die disciplinary rules (DR 5-101 [A] and DR 1-102 [A] [5]) of which the board found them guilty. They argue that had they been notified they would have been prepared to defend such charges by calling numerous witnesses who were former clients to show that full disclosure was made to the clients, and thereby establish that they had not violated the specific disciplinary rules set forth in the board’s findings. When the respondents were notified by the assistant attorney general that they were charged with advertising and/or soliciting, either directíy or indirectíy, Paul D. Berldey, one of the respondents on January 28, 1972, replied to the assistant attorney general and asked: “. . . We also ask that the Board set forth charges against us with sufficient particularity to inform us ‘clearly and specifically of the acts of misconduct with which. . . .’ we are being charged under Rule 205 (b) of the Supreme Court. . . .” Carbon copies were sent to two members of the board, but the respondents contend they received no answer or reply from anyone. There is nothing in the file with this court to the contrary. The respondents’ attorney, William L. Mitchell, requested of the attorney general’s office that the specific charges be specified, and these requests were refused. Under the circumstances the acts with which the respondents were found guilty were never the basis of a charge concerning which they were notified, and they were found not guilty of the charges concerning which they were notified. Accordingly, judgment is entered for the respondents. Owsley, J., not participating.	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The opinion of the court was delivered by Kaul, J.: This is an appeal by petitioner in a proceeding under K. S. A. 60-1507 wherein the trial court denied relief following an evidentiary hearing. Petitioner was convicted of larceny in connection with the theft of automobile tires from a Goodyear store in Wichita. On direct appeal to this court his conviction was affirmed. (State v. Oswald, 197 Kan. 251, 417 P. 2d 261.) Subsequent to the disposition of the direct appeal petitioner filed a 60-1507 motion pro se. The motion was summarily denied but the record is silent as to the issues raised. On July 15, 1971, petitioner filed a second 60-1507 motion and a hearing thereon was commenced on the same date. At this hearing petitioner was represented by Stephen B. Millin, a mem ber of tlie Missouri bar, who was permitted by the trial court to appear on behalf of petitioner without compensation. Ernest Mc-Crae, a member of the Wichita bar, was associated with Millin as local counsel only. In this second motion petitioner alleged that he had been denied effective assistance of counsel at the original trial. For reasons not appearing in the record, the motion was heard only in part on July 15, 1971, and continued to September 17, 1971. After another partial hearing the matter was again continued to November 12, 1971, at which time the following colloquy transpired: “The Court: Mr. Millin, you indicated this morning that you would possibly have an hour examination. We have been going an hour and 20 minutes. Do you have any idea how long you are going to be? “Mr. Millin: Yes, I could be quite a while yet. “The Court: How long? “Mr. Millin: Depends on the future rulings that come about. I would say it would take another hour, Sir. “The Court: We’d better take a recess right now. I have to see the administrative judge. “Mr. Millin: All right Sir. “The Court: You may let tire record show that the Court has determined that it will not proceed further in this matter until Mr. Millin has local counsel present “Mr. Millin: Your Honor, Mr. McCrae — did I understand Your Honor in chambers to state — I wanted to recite that in the record — that Your Honor will not allow me to present — to go any further in this case and that the questions have to be presented by the local counsel? Or is the court’s ruling merely that the local counsel has to be present? “The Court: I am going to require that he present the matter. • • • • • • • r»i cvt m hi na “Millin: Is the state requesting that local counsel be present, or is this on tire court’s own motion? “The Court: This is on the court’s own motion.” The court further indicated that the hearing would be continued to a later date. Millin objected to the continuance but the court overruled the objection. The trial court’s interruption of Millin’s examination of the witness and the ordering of a continuance, over Millin’s objection, are urged on appeal as abuse of discretion amounting to reversible error. The matter was continued to December 22 at which time McCrae was permitted to withdraw and Orval Fisher was appointed as local counsel. On December 29, 1971, the hearing was reconvened with Mr. Fisher present as local counsel for petitioner. Although he was advised of the hearing date, Millin did not appear. The record is replete with statements by Fisher at the hearing that he agreed to enter the oase as local counsel only; that he was not prepared to actively represent petitioner; and that petitioner indicated he did not want Fisher to represent him. Fisher requested a continuance for the purpose of reviewing the transcript or, in the alternative, that Millin be given the opportunity to participate in the remainder of the hearing. The trial court indicated it understood Fishers position, but permitted the state to proceed. Fisher did not cross-examine the state’s remaining witness nor did he present any closing argument summing up the claims of petitioner. At the conclusion of the hearing, the trial court found petitioner was not entitled to relief and overruled his motion. On January 7, 1972, petitioner filed a motion for a new hearing or discharge alleging the court erred in its conduct of the prior hearings. This motion was heard on January 21, 1972, with both Millin' and Fisher appearing and presenting arguments on behalf of petitioner. When this motion was overruled petitioner perfected the instant appeal. Two points of error are raised by petitioner, both go to the underlying issue before us on appeal — whether petitioner was afforded a fair hearing on his motion. Petitioner first contends that the trial court erred in refusing to grant a continuance as requested at the December 29 hearing and allowing the state to proceed while petitioner was represented only by unprepared local counsel. Concerning Mr. Fisher’s lack of preparation on December 29, the following colloquy appears: . “Mr. Fislier: In connection with the record and in counsel’s announced purpose to call witnesses I assume that the previous record is clear, although I want it to be perfectly clear that I know nothing about what has transpired. “While we were waiting to convene, Your Honor’s reporter got the citation of the Supreme. Court case, the direct appeal, which I was in the process of reading; but I understand that Mr. Millin considers that because of the interruption of the hearing or the convening it about 3:30 before, that it is a hopeless matter, he says, for him to come down. I am not capable of cross examining witnesses, and.if Your Honor proceeds, I want the record to show that I merely sit here as local counsel and that the man is not represented as far as an attorney who is prepared and qualified to cross examine witnesses which Mr. Sanborn might introduce. “Mr. Sanborn: Your Honor, the nature of this testimony, I think, will disclose itself that no amount of preparation would be required to cross examine Mr. Ratner. “The Court: You may call your witness.” This court has long recognized the rule that the granting or refusal of continuances rests within the sound discretion of the trial court, subject only to the limitation that this court will review alleged abuse of such discretion. (State v. Williamson, 210 Kan. 501, 502 P. 2d 777; Fouts v. Armstrong Commercial Laundry Distributing Co., 209 Kan. 59, 495 P. 2d 1390; and State v. Weigand, 204 Kan. 666, 466 P. 2d 331.) Under the circumstances attending the December 29 hearing, the trial court’s refusal to grant a continuance operated to deny petitioner the effective assistance of counsel. With regard to procedures applicable to 60-1507 motions Supreme Court Rule No. 121 (i) (209 Kan. xl) reads: “It a motion presents substantial questions of law or triable issues of fact the court shall appoint counsel to assist the movant if he is an indigent person.” The reasons for the inclusion of subsection (i) in our Rule No. 121 are pointed out and discussed in our opinion in Stahl v. Board of County Commissioners, 198 Kan. 623, 426 P. 2d 134, wherein we stated: “Considering both Gideon (Gideon v. Wainright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792) and Lane (Lane v. Brown, 372 U. S. 477, 9 L. Ed. 2d 892, 83 S. Ct. 768) in context, this court concluded that in post-conviction proceedings had under K. S. A. 60-1507, due process required that counsel be appointed to assist indigent prisoners at the trial whenever substantial questions of law or triable issues of fact were presented. Accordingly, subsection (i) was made a part of Rule No. 121.” (p. 625.) In the instant case the trial court evidently considered, petitioner’s motion to be of sufficient merit to require an evidentiary hearing and the appointment of counsel. The issue of the adequacy of trial counsel when raised in a 60-1507 proceeding, if supported by factual allegations and the designation of witnesses, may pose a substantial question necessitating an evidentiary hearing and the appointment of counsel. (Floyd v. State, 208 Kan. 874, 495 P. 2d 92; Ray v. State, 202 Kan. 144, 446 P. 2d 762; and Stahl v. Board of County Commissioners, supra.) While we were considering the constitutional right of an accused to trial counsel in Ray v. State, supra, we believe what was said and held therein concerning adequacy of counsel is pertinent here: “The constitutional right to counsel is not a matter of form, but one of substance; it is a right which contemplates the guidance of a responsible, capable lawyer devoted to his client’s interests, and possessed of opportunity to become acquainted with both the law and the facts pertaining to the casé against the accused.” (Syl. ¶ 3.) Mr. Fisher had been appointed shortly before the December 29 hearing; he informed the court that his understanding was that he was only to act as local counsel; that petitioner did not desire his representation; and that he was unprepared to conduct the hearing. The trial court’s refusal to grant a continuance at Mr. Fisher’s request, followed by the court’s insistence that the hearing proceed, notwithstanding Mr. Fisher’s statements, frustrated the purpose of Rule No. 121 (i) and operated to deny petitioner the effective assistance of counsel. Petitioner’s second contention is that the trial court abused its discretion when it interrupted the November 12 hearing and ruled on its own motion that petitioner’s chosen counsel would not be permitted to proceed with the active presentation of the case. K. S. A. 7-104 sets forth the conditions whereby an attorney admitted to practice in another state may appear before the courts or administrative agencies of this state. The statute provides in pertinent part that an out-of-state attorney: “. . . may, on motion be admitted to practice for the purpose of said business only, in any of said courts, tribunals or agencies, upon taking the oath as aforesaid and upon it being made to appear by a written showing filed therein, that he has associated and personally appearing with him in the action, hearing or proceeding an attorney who is a resident of and duly and regularly admitted to practice in the courts of record of this state, upon whom service may be had in all matters connected with said action, hearing or proceeding, with the same effect as if personally made on such foreign attorney, within this state, and such foreign attorney shall thereupon be and become subject to the order of, and amenable to disciplinary action by the courts, agencies or tribunals of this state: . . .” K. S. A. 7-104 is supplemented by Supreme Court Rule No. 109 (209 Kan. xxxvi) which reads: “An attorney regularly practicing outside of this state and in good standing as a member of the Bar of the place of his regular practice may be recognized as an attorney by the courts, commissions, and agencies of this state, for any action or proceeding, but only if he has associated with him as attorney of record in such action or proceeding a member of the Bar of this state qualified under the provisions of K. S. A. 7-104, upon whom service may be had in all matters connected with such action or proceeding proper to be served upon an attorney of record.” Petitioner insists that there is nothing in these provisions which requires local counsel to actively present the case in person. We agree. Members in good standing of the bar in other states are, of course, welcome to appear before the courts and administrative agencies of this state, but association with Kansas counsel as re quired by 7-104 is absolutely essential for the reasons stated therein. (Fouts v. Armstrong Commercial Laundry Distributing Co., supra.) This does not mean, however, that the trial court is required to forego its inherent discretionary powers to discipline or control out-of-state counsel where the exigencies of the situation so dictate. The statute in question specifically subjects any foreign attorney appearing in this state to the disciplinary powers of the court, agency, or tribunal before which he appears. In the instant case the trial court made the following statement at the December 29 hearing with regard to the reasons for interrupting Millin on November 12: “I think the record of the previous hearing, the last previous hearing prior to this one, will adequately reflect the position of the Court with regard to permitting Mr. Millin to continue. I felt that we were not accomplishing anything. We were on the third day of testimony in this matter, and the retained counsel was not asking questions, he was making speeches; and I did inform him that I would not hear anything further until local counsel was present. I think I made that crystal clear at the last hearing.” The record of the November 11 hearing, which we have previously quoted, however, reflects that the trial court not only required the presence of local counsel, but that he should present the matter. The record is completely silent as to the nature of Millin s alleged speeches and does not indicate whether the trial court warned him or otherwise attempted to limit the scope of counsel’s inquiry. It appears that Mr. Millin may well have been testing the patience of the court, but the abrupt interruption on the court’s own motion of Millin’s conduct of the hearing because of the absence of local counsel effectively deprived petitioner, in part at least, of his day in court. This should in no wise be interpreted as an aberration of the rule that control of counsel’s conduct of the case is within the sound discretion of the trial court. Furthermore, this court is not considering the question whether the trial court could have properly required local counsel’s physical presence at the hearing as opposed to its ruling that local counsel would be required to actively conduct the presentation of the case. Although it appeal's that some of petitioner’s troubles may stem from the conduct of his own out-of-state counsel and even though the charges of ineffective trial counsel set forth in his motion may seem improbable, he is entitled to a fair and complete hearing. In view of a majority of this court, the interruption of the pro ceedings on November 11, coupled with the refusal to grant a continuance on December 29 under the circumstances surrounding both occasions amounts to an abuse of discretion on the part of the trial court which necessitates a rehearing. The judgment is reversed with directions to grant a new hearing of petitioner’s motion. Fromme, J., dissenting.	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The opinion of the court was delivered by Fontron, J.: The Emporia State Bank and Trust Company brings this action to foreclose a real estate mortgage. The defendants, Mr. and Mrs. Mounkes, filed an answer and cross petition. The court rendered personal judgment against the defendants for $1651.51 and a judgment in rent for $5911.53. The mortgage was foreclosed as to both sums. Judgment was also entered in favor of the bank on the defendants’ cross petition. Mr. and Mrs. Mounkes have appealed. No dispute exists concerning the faots. On February 13, 1963, Mr. and Mrs. Mounkes executed their promissory note to the bank in the amount of $12,500, and secured the same by a mortgage on an Emporia property which was their homestead. The face of the note indicates that monthly payments were started April 1, 1963. When the present proceedings were commenced the indebtedness had been reduced to $1573.57. On February 27, 1971, some eight years after the mortgage was given, Mr. Mounkes executed his personal note to the bank for $5100. We were advised on oral argument that this loan was procured by Mr. Mounkes to assist a son in starting a restaurant business. A third note in the amount of $3711 was executed by Mr. Mounkes August 6, 1971. This loan was secured by a security agreement covering a 1970 Ford car and had been paid down to some $529 by the time the present action was filed. To complete the factual picture, Mr. and Mrs. Mounkes were adjudicated bankrupts August 25, 1971, and both were duly discharged January 19, 1972. In its petition the bank prayed for the foreclosure of its mortgage not only as to the balance due on the original note executed by Mr. and Mrs. Mounkes in 1963, but also as to the amounts alleged to be unpaid on the two subsequent notes signed by Mr. Mounkes in 1971. The bank’s contention in such regard was and is predicated on a so-oalled dragnet provision contained in the mortgage. It reads as follows: “This mortgage is given to secure payment of the sum of Twelve Thousand Five Hundred & no/100 Dollars ($12,500.00) and interest thereon, according to the terms of promissory note/s this day executed and subsequently to be executed by the mortgagors to the mortgagee, and all other sums which may hereafter be owing to the mortgagee by the mortgagors or any of them, however evidenced; it being understood and agreed that the mortgagee may from time to time make loans and advances to the mortgagors or any of them and that aE such loans and advances and the interest thereon will be secured by this mortgage: provided that the aggregate principal amount of the loans and advances hereunder shall at no time exceed the amount hereinbefore stated.” The trial court agreed with the bank’s position so far as the $5100 note was concerned and decreed that the balance due thereon as well as the balance due on the original note be made a lien on the mortgaged property. The court further ordered the mortgage foreclosed as to both amounts, which then totaled $7563.10. In so doing, the court forebore to enter personal judgment on the $5100 note signed by Mr. Mounkes, but granted judgment in rem against the real estate for the face amount thereof, plus interest. No judgment appears to have been rendered on the third note secured by the Ford car. We should say at this point the defendants concede that the unpaid balance of the original note is secured by their mortgage of February 13, 1963. However, they take a quite different position with respeot to the subsequent note signed by Mr. Mounkes on February 27, 1971, and they rely heavily on our opinion in Stockyards National Bank v. Capitol Steel & Iron Co., 201 Kan. 429, 441 P. 2d 301. Before examining that decision in depth, we pause for a look at some guiding principles. The dragnet syndrome is not a stranger in banking circles. Indeed, it has long found legislative recognition in what is now K. S. A. 1973 Supp. 9-1101 (4). Moreover, we apprehend that a future advances clause in a mortgage may provide an extremely useful and practical tool in facilitating many business and commercial type operations which involve frequent or continuing advancement of funds and extension of credits. (First Nat. Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64.) One example, among others which come readily to mind, is found in the construction or building trade where the open end or dollar mortgage serves as a convenient device in facilitating the flow of funds at minimal expense. (See Potwin State Bank v. Ward, 183 Kan. 475, 327 P. 2d 1091.) Some of the advantages which accrue both to the lender and to the borrower are pointed out by Professor Blackburn in Mortgages to Secure Future Advances, 21 Mo. Law Review 209. In the great majority of cases where the question has arisen, the coruts have held that future advancements made pursuant to a dragnet or open end type of mortgage oame within the contemplation of the parties and were thus secured thereby. Cases to this general effeot are to be found among our own reports. (State Bank v. Tinker, 131 Kan. 525, 292 Pac. 748; Union State Bank v. Chapman, 124 Kan. 315, 259 Pac. 681.) Despite recognition by both judicial and legislative bodies that the dragnet mortgage fills a contemporary need in the complex world of business, it is not a favorite of the law and is subject to interpretation and construction. As the Iowa Supreme Court so aptly observed in First v. Byrne, 238 Iowa 712, 28 N. W. 2d 509, 172 A. L. R. 1072, “ ‘Dragnet’ clauses are not highly regarded in equity. They should be ‘carefully scrutinized and strictly construed.’” (pp. 715, 716.) This view was mirrored in Berger v. Fuller, 180 Ark. 372, 377, 21 S. W. 2d 419, 421, where the Supreme Court of Arkansas, in speaking of a mortgage having a future advancements clause, said: “. . . Mortgages of this character have been denominated ‘anaconda mortgages,’ and are well named thus, as by their broad and general terms they enwrap the unsuspecting debtor in the folds of indebtedness embraced and secured in the mortgage which he did not contemplate, and to extend them further than has already been done would, in our opinion, be dangerous and unwise. . . .” Where the construction of a mortgage is brought in issue the primary question for determination is what was the intention of the parties. In arriving at a decision of the matter, all the circumstances attending the execution of the mortgage and the nature of the transaction are to be considered as well as the language of the instrument itself. (Hendrickson v. Farmers’ Bk. & Trust Co., 189 Ark. 423, 433, 73 S. W. 2d 725.) In the Hendrickson case the court stated that where a mortgage has been given to secure a debt specifically named, the security will not be extended to cover debts subsequently incurred unless they be of the same class and so related to the primary debt secured that the assent of the mortgagor will be inferred. The reason is that mortgages, by the use of general terms, ought never to be so extended as to secure debts which the debtor did not contemplate. The court then proceeded to quote the following passage from American Bank & Trust Co. v. First National Bank of Paris, 184 Ark. 689, 43 S. W. 2d 248: “. . . ‘Where one contracts in good faith with a debtor that the security given should include not only that specifically mentioned in the mortgage but other indebtedness, whether existing then or to be incurred in the future, it is not difficult to describe the nature and character thereof, so that both the debtor and third parties may be fully advised as to the extent of the mortgage.’ ” (pp. 433, 434.) The foregoing cases were later followed by National Bank of Eastern Arkansas v. Blankenship, 177 F. Supp. 667, 673, where the court spoke in this wise: “The ‘other indebtedness’ secured by a mortgage may be either antecedent or subsequent. Where it is antecedent, it must be identified in clear terms, and where it is subsequent, it must be of the same class as the primary obligation secured by the instrument and so related to it that the consent of the debtor to its inclusion may be inferred. (Citing cases.)” To similar effect see Belton v. Bank, 186 N. C. 614, 616, 120 S. E. 220. It occurs to us that a number of circumstances bear on the intention of the parties to the mortgage now before us. It was executed in 1963 to secure an indebtedness contemporarily incurred. The record shows no additional funds advanced to the Mounkes or further financial dealings had between them and the bank for more than eight years, when Mr. Mounkes “by his: lonesome” signed a note for $5100. This latter note contains no reference of any sort to the real estate mortgage jointly executed eight year's before. We believe the omission is significant, especially in view of the fact that a space was provided in the note for recording the description of collateral security. In the space thus provided there was typed, presumably by the bank, the word “Sig.” The record reveals from statements made by plaintiff’s counsel that this means “signature” and that “Normally, you think of a signature loan as being a loan on which there was no security whatsoever.” Furthermore, the record bears no evidence of any relationship between the 1963 loan to Mr. and Mrs. Mounkes and the subsequent loan to Mr. Mounkes. There is not the slightest intimation that any part of the loan to Mr. Mounkes was to be used in the repair or improvement of the Mounkes residence — indeed, such a suggestion is negated by the statement that it was to help a son get into' die restaurant business. Our decision in Stockyards National Bank v. Capitol Steel & Iron Co., supra, underlines the significance of referring, in subsequent notes, to a mortgage previously executed, if it is contemplated that the mortgage will provide security for the later notes. The defendants urge that the rationale of the Stockyards case is of controlling effect as to this point, and we are inclined to agree it is of precedential value. Somewhat simplified, the facts of that case were these: Kansas Steel Corporation (Kansas Steel) executed two promissory notes to the Stockyards Bank and secured their payment by separate real estate mortgages each containing a dragnet clause. Subsequendy, Kansas Steel executed a series of eight promissory notes to the bank containing no reference to the bank’s mortgage but showing them secured by warehouse receipts. After die eight notes had been given to the bank, Kansas Steel executed two promissory notes to Capitol Steel & Iron Co. (Capitol Steel) and secured them by a second mortgage on the same property mortgaged to the bank. Hard times descended on Kansas Steel and its ship began to founder. The bank filed proceedings to foreclose its mortgages, joining Capitol Steel and other Hen claimants as defendants. When the assets of Kansas Steel had been liquidated there were not enough funds to go around, and the bank came up> shy on the warehouse receipts. The bank then contended it could resort to the proceeds from the mortgaged real estate, which were in excess of the balance due on the original notes, before Capitol Steel could be paid on its second mortgage. In rejecting the bank’s position, this court said: ". . . [W]e find nothing in the language relied upon in the eight promissory notes which refers or relates in any way to the real estate or creates any lien upon it or makes it hable for any indebtedness created by virtue of the notes. The only collateral security referred to in these unrecorded notes, and sought to be bound is the personalty mentioned therein — the warehouse receipts. It is elemental that, absent agreement of the parties, a mortgage given to secure a particular debt cannot be enforced as security for another or different debt (59 C. J. S., Mortgages, § 178a).” (p. 432.) An opinion we find persuasive hails from our sister state in the far reaches of the Pacific Ocean. In Akamine & Sons v. Am. Sec. Bank, 50 Haw. 304, 440 P. 2d 262, questions of priority arose between two creditors, it being contended on the part of one bank that its dragnet mortgage gave it priority as to property which had been mortgaged to a second bank at a later date. The Supreme Court of Hawaii did not look kindly on the contention thus advanced, nor did it view dragnet mortgages in general with unjaundiced eye. In the opinion it was said: “We are prevented from holding a mortgage to secure future advances contrary to public policy by its statutory authorization and the undeniable benefits which it may engender. As a court of equity, however, we will construe such mortgages very strictly against the mortgagee. . . . Completely unrestricted enforcement of such mortgages would tend to reduce the borrower to the status of economic serf. . . . “Under the ejusdem generis rule, the statute does not require us to enforce a dragnet, or anaconda, clause in a mortgage as to debts or obligations not of the same kind as the specific principal debt or obligation for which the mortgage is given. Unless the prior or subsequent advance relates to the same transaction or series of transactions, the mortgage must specifically refer to it for the advance to be secured. This court will not assist a lending institution in an attempt to captivate a borrower by inclusion in a mortgage of a broad all inclusive dragnet clause. . . . To attempt to foreclose, for example, on the mortgagor’s home for debts incurred in operating a business and which debts are not specifically covered by the mortgage would be unconscionable and contrary to public policy.” (pp. 312, 313.) We are aware that the trial court, in entering judgment in rem in favor of the bank, found it was the parties’ intention at the time of the execution of the mortgage that it would secure payment of any sums of money which the mortgagee might loan the mortgagors or either of them. The difficulty with that conclusion is that the record contains no supporting evidence except for the dragnet clause itself. That clause we deem to be insufficient in the face of this record. As we have heretofore said, it is necessary, when determining the intention of the parties to a mortgage, that the attending circumstances and the nature of the transaction be considered. Here there is nothing from which it may be inferred that by mortgaging their homestead the defendants contemplated it would stand as security for a loan obtained by Mr. Mounkes to start his son in business eight years later. There is a total lack of evidence to sustain a presumption the two loans were related in any sense. The evidence is, indeed, quite to the contrary and we are constrained to hold the finding of the trial court is not sustained by the record. In summary, we hold that in the absence of clear, supportive evidence of a contrary intention a mortgage containing a dragnet type clause will not be extended to cover future advances unless the advances are of the same kind and quality or relate to the same transaction or series of transactions as the principal obligation secured or unless the document evidencing the subsequent advance refers to the mortgage as providing security therefor. The loan extended to Mr. Mounkes in 1971 does not meet these criteria. In view of the conclusion we have reached other points raised by the defendants need not be discussed except that we may note there is nothing in the record to sustain the defendants’ claim for damages on their cross petition. Indeed, the defendants have not even briefed that area. The judgment entered against the defendants for $1651.51 on the original note and decreeing foreclosure of the mortgage as to such amount is affirmed. The judgment in rem in the amount of $5911.53 is reversed. The judgment in plaintiff’s favor on the defendants’ cross petition is affirmed. It is so ordered.	[ -15, 108, 16, -4, 10, -32, 42, -102, 74, -96, 37, -45, -29, 66, 20, 105, 116, 61, -28, 121, -43, -78, 7, 75, -46, -13, -16, -43, -15, -3, -12, -41, 76, 32, -62, 29, -122, -80, -57, 92, 78, -85, -119, 85, -35, 66, 48, 59, 80, 72, -107, -116, -13, 45, 57, 106, 104, 44, 91, 61, -48, -72, -97, 5, 95, 22, -111, 100, -98, 71, 64, -118, -112, 49, 1, -24, 114, -90, -106, 52, 105, 27, 12, 38, 98, 18, -27, -18, -36, -120, 15, -34, -115, 7, -77, 88, 0, 37, 62, -99, 124, 81, 7, -2, -17, 21, 31, 108, 7, -50, -74, -111, -113, 127, 30, -101, -5, -117, 32, 113, -50, -16, 93, 99, 58, -101, -114, -80 ]
The opinion of the court was delivered by Owsley, J.: This is an appeal from an order granting a permanent injunction in an action filed by Yellow Freight System, Inc., against the Kansas Commission on Civil Rights. The action is collateral to an action by the Kansas Commission on Civil Rights on the complaints of Bobby G. Ferrell, Wendell Phillips, and John W. Allen, charging employment discrimination by Yellow Freight System, Inc. Hereafter, the Kansas Commission on Civil Rights will be referred to as the commission; Ferrell, Phillips, and Allen, as complainants; and Yellow Freight System, Inc., as respondent. The issue on appeal is the authority o£ the commission to investigate and issue a subpoena after a finding of probable cause for crediting complaints of discrimination, but prior to issuing notice of a hearing on said complaints. On November 21, 1970, the complaint of Ferrell was served upon respondent in Baxter Springs, Kansas, charging racial discrimination in its employee “layoff” practices in violation of the Kansas Acts Against Discrimination. (K. S. A. 44-1001, et seq.) On December 17, 1970, the complaints of Phillips and Allen were served on respondent alleging similar acts of racial discrimination. The complaints were consolidated and investigated by a field representative of the commission and an investigating commissioner. On March 21, 1971, a finding of probable cause for crediting said complaints was made by the investigating commissioner and respondent was notified thereof. Conciliation was attempted at several meetings but was not successful. On March 9, 1972, the instant subpoena was served on respondent’s manager of road operations in Baxter Springs ordering the production of employment histories of all over-the-road drivers hired by that terminal since January 1, 1960, for examination by the commission. Oln March 20, 1972, respondent filed this action for a writ of mandamus, prohibition, or, alternately, injunction in the district court of Cherokee County. The respondent alleges the subpoena issued by the commission exceeded its statutory authority. A hearing was held on respondent’s motion and the district court granted respondent a permanent injunction on November 28, 1972. The court interpreted the complaint procedure outlined by K. S. A. 1971 Supp. 44-1005 as follows: “. . . [A]fter a finding of probable cause has been made by the Commission under this statute, that the Commission has no further power to investigate or to subpoena documents except after the statutory notice has been given to the employer for a hearing pursuant to the plain and expressed terms of the statute.” On appeal, the commission contends tire district court erred in concluding the statutes limit tire commissions use of its subpoena power to preliminary investigations to determine probable cause, and to subpoenaing witnesses and documents in connection with hearings before the commission. The commission further contends it was error to enjoin its subpoena on the ground it was not issued in exercise of one of these functions. The question on appeal, then, is whether the complaint procedure outlined in K. S. A. 1971 Supp. 44-1005 limits the commissions investigatory and subpoena powers authorized by K. S. A. 1971 Supp. 44-1004 (4) and (5). The authority under which the commission was investigating the respondent is provided in K. S. A. 1971 Supp. 44-1004: “The commission shall have the following functions, powers and duties: “(4) To receive, initiate, investigate, and pass upon complaints alleging discrimination in employment and public accommodations because of race, religion, color, national origin or ancestry. “(5) To hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and in connection therewith, or in connection with the investigation to require the production for examination of any books or papers pertinent to the proceedings, where a complaint has been properly filed with the commission. . . .” Subsection (5) has been amended to provide other tools of discovery. (K. S. A. 44-1004 [5].) The amendment was not in effect at the time the subpoena in question was issued, but respondent contends the amendment is an important indication of the limitations on the commission’s power of subpoena intended by the 1971 statute. As amended, subsection (5) reads: "(5) To subpoena witnesses, compel their appearance, require the production for examination of records, documents and other evidence or possible sources of evidence and to examine, record and copy such materials and take and record the testimony or statements of such persons. The commission may issue subpoenas to compel access to or the production of such materials, or the appearance of such persons, and may issue interrogatories to a respondent to the same extent and subject to the same limitations as would apply if the subpoena or interrogatories were issued or served in aid of a civil action in the district court. ...” Respondent contends the 1972 amendment is significant because it deletes the phrase “pertinent to the proceedings’’ which tied the exercise of the commission’s power to investigate and issue subpoenas, to the complaint procedure in K. S. A. 1971 Supp. 44-1005. The complaint procedure provides for the preliminary investigation by the commission of complaints filed by individuals. It also provides for issuance of complaints by the commission on its own behalf after investigation shows a pattern or practice of discrimination by an employer. After a preliminary investigation by a commission field representative convinces the investigating commissioner there is probable cause to credit the charges of an individual complaint, or after the commission investigates and files its own complaint, the employer is notified and conciliation meetings may be held to attempt to eliminate the discriminatory prac tice. If conciliation fails or is not attempted the commission may or may not schedule a formal public hearing on the complaint. If a formal hearing is scheduled, the commission shall issue a subpoena on the application of a complainant or respondent for the attendance of any person, or the production for examination of any books, records or documents pertinent to the proceedings. Tire hearing may lead to an order enforceable by court procedure to cease and desist from such practice or a finding by the commission that there is no violation of the Act. The district court has adopted respondent’s interpretation, holding the complaint procedure authorizes investigations and the use of subpoenas in aid of investigation in three instances only: (1) To determine probable cause to credit an individual complaint; (2) as a preliminary requirement to filing a complaint by the commission; and (3) to obtain witnesses or documents for a formal hearing after setting a date for such hearing. The commission contends K. S. A. 1971 Supp. 44-1005, if it affects their powers of investigation and subpoena at all, merely adds to them by extending the subpoena power of the commission to complainants and respondents to secure witnesses and documents for hearings. The State of New York has a similar act against discrimination and when presented with the same question the court held the commission’s subpoena power was not limited to use in the particular procedures outlined for conduct of complaint proceedings, but could be used in general informal investigations to enable the commission to carry out all its statutorily assigned duties. (Mtr. of Broido v. St. Comm. for Hum. Rgts., 40 N. Y. Misc. 2d 419, 243 N. Y. S. 2d 101.) The court said: “. . . It cannot be argued from the fact that a particular procedure was outlined ... in relation to verified complaints filed with the commission by claimant . . . and that such procedure includes the subpoena power, that the subpoena power does not exist in connection with the power to investigate into matters before the commission as covered by the provisions of section 295 of the Law Against Discrimination. . . .” (p. 421.) New York Executive Law 295 referred to by the court is similar to K. S. A. 1971 Supp. 44-1004 in that it assigns to the New York Commission in sections 9 and 10 thereof, the same duties provided for in sections 12 and 13 of the Kansas law, and both the New York and Kansas commissions are charged with, inter alia, making investigations of discrimination and reporting to the governor. General tenets of administrative law recognize that an agency charged with investigatory duties to ferret out violations of the law can issue subpoenas and make such investigations, even though no formal administrative hearing be pending. (Brovelli v. Superior Court, 56 Cal. 2d 524, 15 Cal. Rptr. 630, 364 P. 2d 462; Fielder v. Berkeley Properties Co., 23 Cal. App. 3d 30, 99 Cal. Rptr. 791; United States v. Morton Salt Co., 338 U. S. 632, 94 L. Ed. 401, 70 S. Ct. 357. If agencies charged with enforcement duties are to accomplish the tasks assigned them by legislative bodies, the following construction must be placed upon statutes granting administrative bodies subpoena powers: “. . . [T]he heads of departments of government may compel the production of evidence for purposes of investigation, without instituting formal proceedings against the one from whom the evidence is sought or filing any charges against him. As has been said by the United States Supreme Court, the power to make administrative inquiry is not derived from a judicial function but is more analogous to the power of a grand jury, which does not depend on a case or controversy in order to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.’ . . . (Brovelli v. Superior Court, supra, p. 529.) The investigative and reporting duties assigned to the commission, when considered in the light of the statute’s general purposes, lead us to the conclusion that the legislature did not intend to limit the exercise of the commission’s investigatory powers to the preliminary stages of the complaint procedure outlined in K. S. A. 1971 Supp. 44-1005. The commission must be free to investigate, which necessarily implies the use of its subpoena authority, if it is to carry out and give meaning to all the investigatory and reporting duties assigned it in K. S. A. 1971 Supp. 44-1004. The specific mention of subpoena power in connection with a scheduled formal hearing in K. S. A. 1971 Supp. 44-1005, cannot in any way be interpreted to limit the commission’s power of subpoena. It is an extension of that power in aid of complainants and respondents. The district court’s interpretation of the statutes is erroneous and the permanent injunction against the commission’s subpoena is dissolved. Respondent argues further in support of the injunction that it should be affirmed on the ground commission did not meet its burden of proving the records subpoenaed by them were relevant. This issue was not reached by the district court, but an appellee may support the judgment by any reason disclosed by the record. If the decision below is correct for any reason, it must be affirmed although the lower court relied upon a wrong ground or theory of the law. (Tripp v. The Reliable Life Insurance Co., 210 Kan. 33, 499 P. 2d 1155; Kirk v. H. G. P. Corporation, Inc., 208 Kan. 777, 494 P. 2d 1087.) The respondent’s contention that the documents need to be pertinent to a formal hearing is already discredited since we have held the commission’s power to investigate and to subpoena does not depend upon the pendency of a formal complaint proceeding or hearing. The respondent further contends the commission is under a burden to prove the relevancy of the subpoenaed employment records to prove or disprove the specific acts of discrimination charged by the complainants, and the commission failed to meet that burden. The weight of authority of administrative law refuses to apply the stringent relevancy requirements of subpoenas in aid of civil or criminal litigation to agency subpoenas. The test of relevancy we approve is set forth in Brovelli, supra, where it is held: “. . . [I]t requires only that the inquiry be one which the agency demanding production is authorized to make, that the demand be not too indefinite, and that the information sought be reasonably relevant. (United States v. Morton Salt Co., supra, 338 U. S. 632, 651-654; Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 202 et seq. [66 S. Ct. 494, 90 L. Ed. 614 166 A.L.R. 531].)” (p. 529.) In this case, the subpoena on its face states it is in furtherance of the complaints of Ferrell, Phillips, and Allen against Yellow Freight System, Inc., a subject within the commission’s statutory authority. The documents subpoenaed are employment records and are clearly described. Respondent further contends the employment histories of drivers hired since 1960 are not pertinent to the question of whether complainants were discriminated against since ‘layoff” depends upon length of service or seniority of the employee and complainants were hired in 1968 and 1969. We do not know whether the employment records of the respondent from 1960 will disclose any criteria for arguing discrimination exists in “layoff” policies. The code of civil procedure provides upon application of one against whom a subpoena is issued the court may quash or modify a subpoena if it is unreasonable and oppressive. (K. S. A. 1973 Supp. 60-245 [6].) We believe there is a possibility of relevancy in the documents subpoenaed and in the absence of any showing that the subpoena is unreasonable or oppressive the statute should be liberally construed to permit inquiry. Enforcement of the subpoena cannot be denied on the ground the documents are not pertinent to the proceeding. The subpoena of documents in furtherance of these complaints should lead to one of two possible actions by the commission: either the scheduling of a formal hearing, or dismissal of the complaints. Continuing investigation without hearing or dismissal resulting is burdensome to respondent, does not accomplish the purpose of the statute, and does not give complainants the relief afforded by the Act. The intent of the legislature is that once the complaint procedure is commenced it should lead to a final administrative decision and end with either dismissal or an enforceable order. The judgment is reversed.	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Per Curiam: This is an appeal from a K. S. A. 60-1507 proceeding initiated by Wendell Lloyd Taylor, appellant, requesting the district court of Leavenworth County to vacate the judgment and sentence entered against him for escaping from the Kansas State Penitentiary. After an evidentiary hearing, the court denied Taylor’s motion. Taylor has duly perfected an appeal. The pertinent facts occurring prior to appellant’s K. S. A. 60-1507 motion are as follows. In September of 1969 appellant was incarcerated in the Kansas State Penitentiary. On September 27, 1969, the appellant escaped from the institution and fled the state. A complaint was filed on October 1, 1969, in the city court of Leavenworth County, Kansas, alleging appellant’s escape from Kansas State Penitentiary. Appellant testified that on October 1, 1969, he was incarcerated in the Ohio Penitentiary, where he remained for a little over a year. On October 8, 1970, Kansas authorities transported the appellant back to K. S. P. That same day appellant appeared in city court, where he waived a preliminary examination, and a trial was set in the district court. Thereafter, on October 28, 1970, an information was filed in the district court alleging the escape. On October 30, 1970, after being advised by appointed counsel, the appellant entered a plea of guilty to the charge of escape, and was sentenced. The appellant argues on appeal the Kansas State Penitentiary authorities were required to inform him of his rights under the Uniform Mandatory Disposition of Detainers Act (K. S. A. 1973 Supp. 22-4301 et seq.) during the year from October 1, 1969 (the date the complaint was filed in city court) to October 1, 1970. The appellant contends since this was not done his sentence should be vacated under K. S. A. 1973 Supp. 22-4301 (c). The Uniform Mandatory Disposition of Detainers Act only applies to persons “imprisoned in a penal or correctional institution of this state” (K. S. A. 1973 Supp. 22-4301 [a]) (Emphasis added). We said in State v. Morton, 200 Kan. 259, 436 P. 2d 382, cert. den. 393 U. S. 890, 21 L. Ed. 2d 168, 89 S. Ct. 209, reh. den. 393 U. S. 947, 21 L. Ed. 2d 288, 89 S. Ct. 308: “. . . It [Uniform Mandatory Disposition of Detainers Act] has no application when the imprisonment is by some jurisdiction other than the State of Kansas, not only by specific provisions of the statute, but because this state would be unable to secure his attendance from the federal government or another state except as a matter of comity. . . .” (p. 261.) Clearly, the Uniform Mandatory Disposition of Detainers Act did not apply to appellant during the period from October 1, 1969, to October 8, 1970, when he was absent from any Kansas penal or correctional institution. The judgment of the lower court is affirmed.	[ -48, -24, -35, 63, 26, -31, 122, 24, 99, -109, 102, 115, -87, 86, 1, 123, 83, 41, 85, 121, -55, -73, 115, -63, -94, -5, 73, -43, 59, 95, -18, -11, 72, 112, -118, 85, -126, -120, -57, 28, -114, 5, -104, -48, 80, -120, 32, 105, 28, 14, 17, 30, -5, 42, 26, 74, -55, 44, -53, -83, 88, -47, -63, 31, 127, 20, -94, -123, -108, -91, 80, 47, -104, -104, 33, -20, -15, -74, -122, -11, 111, -53, -92, 102, 98, 33, 20, -85, -72, -87, 14, 22, -115, 103, -111, 24, 97, 37, -100, -99, 119, -108, 39, 124, -28, 36, 29, 108, -117, -49, -76, -111, 13, 125, -122, -101, -29, 53, -32, 113, -60, -30, 88, 87, 121, -97, -18, -15 ]
The opinion of the court was delivered by Fontron, J.: This action is brought by the movant, John L. Le Vier, pursuant to K. S. A. 60-1507, attacking the validity of a sentence imposed against him by the Shawnee district court under the provisions of the Habitual Criminal Act, K. S. A. 21-107a. Only one issue is presented on appeal: Is a conviction of escaping from the state industrial school for boys, in violation of G. S. 1949, 21-2001 (now K.S.A. 1973 Supp. 21-3611), a prior felony conviction within the contemplation of K. S. A. 21-107a? The trial court gave an affirmative answer to this question and Le Vier has appealed. No facts are in dispute. In 1958 Le Vier, then less than 16 years old, pleaded guilty to an escape from the state industrial school for boys, an offense defined in G. S. 1949, 21-2001, which carried a sentence of from one to three years to the Kansas state reformatory. Le Vier next ran afoul of the law in 1960, again in Shawnee County, and entered a plea of guilty to the charge of rape, in violation of G. S. 21-424. He was sentenced on this charge to the Kansas state penitentiary for a term of not less than five nor more than twenty-one years. The third time Mr. Le Vier appeared before die Shawnee district court was in 1965 when he entered a guilty plea to assault with intent to maim, as defined in K. S. A. 21-431. The sentencing judge in the third case found that Le Vier had twice before been convicted of a felony, and sentenced him under the provisions of K. S. A. 21-107a as a three-time offender, to be confined in the penitentiary for not less than twenty years. Le Vier contends that the offenses listed in G. S, 1949, 21-2001, and designated therein as felonies, do not fall within the class of felonies contemplated by the Habitual Criminal Act. G. S. 1949, 21-2001 reads as follows: “Any person confined in the state industrial school for boys or in the state industrial school for girls, who shall attempt to set fire to any building belonging to either of such institutions, or to any combustible matter for the purpose of setting fire to any such building, or who shall willfully and forcibly resist the lawful authority of any officer of either of such institutions, or shall incite or attempt to incite others to do so, or shall by gross and habitual misconduct exert a dangerous and pernicious influence over other persons confined in either of such institutions, or shall commit a felonious assault upon any officer, attendant, employee or inmate of either of such institutions, or shall in any manner willfully bum or otherwise destroy property of the value of more than twenty dollars belonging to either of such institutions, or shall run away or escape from either of such institutions, or from the lawful authorities thereof, shall be deemed guilty of a felony, and upon conviction thereof in the district court of the county wherein such offense shall have been committed shall be punished as follows: If the person so convicted is confined in the state industrial school for boys, he shall be sentenced and committed to the Kansas state industrial reformatory for a term of not less than one year nor more than three years; and if the person so convicted is confined in the state industrial school for girls, such person shall be sentenced and committed to the state penitentiary for a term of not less than one year nor more than three years: Provided, That for running away or escaping from either of such institutions the person so offending shall be deemed guilty of a violation of this act only upon the second or subsequent offense.” (Emphasis supplied.) Le Viers contention that a conviction under 21-2001 is not a conviction of felony within the meaning of the Habitual Criminal Act is based on three major premises: 1. G. S. 1949, 21-2001 through 21-2004 were not part of the general criminal laws of this state. 2. The offense of escaping from the State Industrial School for Boys does not meet the standard set by statute and case law to come within the definition of felony. 3. G. S. 1949, 21-2001, et seq., were enacted under and were an extension of the parens patriae power of the state. In the first place we find no suggestion that G. S. 1949, 21-2001 to 2004 were not part of the general criminal laws of this state. It is true these statutes, enacted in 1901, were not included among offenses found in early compilations of criminal laws, such as G. S. 1868, but this is surely not strange since the industrial school for boys, formerly designated the state reform school, was not established until 1881, nor the industrial school for girls until 1889. However, many criminal statutes forming part of the body of our criminal law have been enacted since early statehood. G. S. 21-2001 through 2004, since their enactment in 1901, have been carried in our statute books along with other criminal laws under the general heading of Crimes and Punishments. We find no merit in the movants claim that 21-2001 to 2004 were not part and parcel of the general criminal law of the state. There can be small doubt that when Le Vier entered a plea of guilty to an offense denounced by G. S. 1949, 21-2001 he was pleading guilty to a felony. The statute clearly provides that any person confined in either the state industrial school for boys or the state industrial school for girls who commits any of the acts proscribed in that statute shall be deemed guilty of a felony. Although the movant quibbles over use of the word “deemed”, it is obvious the legislature intended that a violation of the statute should constitute a felony. When, by statute, certain acts are deemed to be a crime of a particular nature, they are such a crime, not a mere semblance of it. (Commonwealth v. Pratt, 132 Mass. 246, 247; Commonwealth v. Brue, 284 Pa. 294, 297, 131 A. 367, 368.) It is a general rule of law that choosing the grade or classification to be given an offense is a function of the legislature. (22 C. J. S., Criminal Law, § 5, p. 12.) The principle is expounded in 21 Am. Jur. 2d, Criminal Law, § 20, pp. 103, 104, in this language: “The grading of offenses has been said to be a legislative function. Accordingly, it has been held that where a statute expressly designates an offense a felony or misdemeanor, such designation is conclusive, regardless of the punishment prescribed and even though by common-law definition, or by the definition given in a statute declaring generally what are felonies and what are misdemeanors, it would fall in the other class. In such case, the statute concerning the particular criminal act works an exception to the general definition. . . .” The legislature saw fit to designate the violation of G. S. 21-2001 as a felony and in so doing was properly exercising its legislative prerogative. K. S. A. 21-107a (now repealed but reincarnated in some respects in K. S. A. 1973 Supp. 21-4504) provides as follows: “Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction; and if convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, die fact of former convictions for felony committed by the prisoner, in or out of this state.” (Emphasis supplied.) Mr. Le Vier argues that since a violation of 21-2001 was made punishable by commitment to the reformatory rather than to the penitentiary, his conviction of an offense proscribed by 21-2001 did not meet the criteria of a second felony “the punishment of which is confinement in the penitentiary.” Although we consider the argument fallacious, we must concede the statute was not artfully drafted. A literal construction, however, would lead to this incongruity: A conviction of violating G. S. 1949, 21-2001 could not be used to double a sentence of a second offender, or so-called two-time loser, but could be used in imposing a sentence of not less than 15 years against a third offender, or three-time loser. We cannot imply a legislative intent to reach a result so bizarre and inconsistent. On the whole it seems to us that the sense of K. S. A. 21-107a is simply this: that every person previously convicted of felony, regardless of sentence or place of commitment, should be subjected, on proper showing, to the increased penalties called for in the Act. In State v. Frizzell, 137 Kan. 35, 37, 19 P. 2d 694, the former conviction relied on in imposing an increased sentence had resulted in a commitment to the reformatory, not to the penitentiary. However, we said in that case that the former conviction of felony was the controlling factor irrespective of the punishment imposed. To similar effect, see Bush v. State, 203 Kan. 494, 498, 454 P. 2d 429; State v. Shepley, 203 Kan. 635, 637, 456 P. 2d 8. We conclude that the phrase “the punishment of which is confinement in the penitentiary” was not intended to be a limiting or controlling factor. Support for this conclusion is found in the phraseology of the last sentence of 21-107a: “. . . Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.” (Emphasis supplied.) It cannot seriously be questioned that the state industrial reformatory is a penal institution. It has always been treated as such by the legislature. In K. S. A. 76-24a01 the legislature defined penal institutions as “the state penitentiary, the state industrial reformatory, or any other penal institution hereafter established by the state for the confinement of male offenders.” While the present statute, K. S. A. 1973 Supp. 75-5202, defines penitentiary and reformatory as “correctional” institutions, both remain essentially penal in character. This court has likewise recognized the penal character of the reformatory. In State, ex rel., v. Owens, 197 Kan. 212, 221, 416 P. 2d 259, it was said: “. . . [W]e hold as a matter of law that the state industrial reformatory at Hutchinson is a penal institution. . . .” Counsel for the movant argues in all seriousness that the conviction of a fifteen-year old boy for felony violates the spirit of our juvenile laws and erodes the concept of parens patriae. This court has never been loath to protect the rights of juveniles or to apply the doctrine of parens patriae but the legislature has spoken on the precise matter before us and we cannot ignore its fiat. The Act Establishing Juvenile Courts, adopted by the legislature in 1905 and codified as G. S. 1949, 38-401, et seq., expressly provided in § 38-402 that it should apply “only to children under the age of sixteen years, not now or hereafter inmates of” any industrial schools for boys and certain other institutions. In Burris v. Board of Administration, 156 Kan. 600, 134 P. 2d 649, this court considered the validity of a commitment to the state industrial reformatory of a fourteen-year old boy who had been convicted of having escaped from the industrial school for boys in violation of 21-2001. The question to be answered was whether a boy of his age could lawfully be sentenced to the reformatory for a violation of 21-2001. The thrust of Burris’ contention was that under the laws relating to juveniles no child less than sixteen years of age could be regarded as a criminal and be committed to the reformatory. Hence, it was argued, 21-2001 must be interpreted as applying only to boys in the industrial school who were sixteen years or older. In rejecting the argument advanced by Burris, this court said: “. . . We cannot usurp the legislative function and indulge the suggestion that the act be interpreted to apply only to boys in the Boys’ Industrial School who are sixteen or more years of age. Nor has any reason been shown for invalidating the whole act. Nor, again, can we say — at least as far as the Boys’ Industrial School is concerned — that the legislative classification established by section 38-402, supra, is arbitrary, capricious and invalid. Under that classification a boy under sixteen who has had the benefit of training at the Boys’ Industrial School may, under certain circumstances, be sent to the State Reformatory. But the law says, in effect, that a boy of the same age not an inmate of the Boys’ Industrial School who commits an offense must first be given a chance to redeem himself under the helpful influence of that institution, and until it has been shown that the school cannot control him he may not be sent to the reformatory.” (pp. 606, 607.) When the new Kansas Juvenile Code was adopted in 1957 (see L. 1957, ch. 256; K. S. A. 38-801, et seq.) it included a provision similar to G. S. 1949, 38-402. The applicable section of the 1957 Act, now codified as K. S. A. 38-806, was in force and effect in 1958 when Le Vier was sentenced for violating 21-2001. K. S. A. 38-806 reads as follows: “(a) Except as provided in K.S.A. 21-2001 to 21-2004, both sections, inclusive, and K. S. A. 38-808 (b) and unless jurisdiction is by statute specifically conferred upon some other court or courts, the juvenile court of each county of this state shall have: “(1) Exclusive original jurisdiction in proceedings concerning the person -of a child living or found within the county who appears to be delinquent, miscreant, wayward, a traffic offender, a truant or dependent and neglected, as defined in K.S.A. 38-802.” (Emphasis supplied.) It appears obvious that from the time the first juvenile court legislation was enacted in 1905 to the present, the legislature has seen fit to exclude from juvenile court jurisdiction any person who, being confined either in the industrial school for boys or the industrial school for girls, has committed any of the acts prohibited in 21-2001. The rationale underlying this legislative policy would seem as valid today as when the Burris opinion was handed down in 1943. At any rate, it is not for this court to usurp the legislative function or to pass judgment on the wisdom of legislative acts. We find no error in the judgment of the trial court and the same must be affirmed.	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The opinion of the court was delivered by Fontron, J.: On July 16, 1968, the defendant, Robert Chester Weathers, pleaded guilty to charges of first-degree robbery and possession of a pistol after conviction of a felony. He was sentenced on both charges, the sentences to run consecutively. The present appeal is from both convictions. The principal point raised in this appeal concerns the defendant’s conviction of possessing a pistol after having previously been convicted of robbery. The relevant statute, K. S. A. 21-2611, provides: “It shall be unlawful for any person who has previously been convicted in this state or elsewhere of committing or attempting to commit murder, manslaughter (except manslaughter arising out of the operation of an automobile), kidnaping, mayhem, forcible rape, assault to do great bodily harm, or any other felonions assault, robbery, burglary, extortion, grand larceny, receiving stolen, property, aiding escape from prison or unlawfully possessing or distributing habit-forming narcotic drugs or cannabis sativa, commonly known as marihauna, to own a pistol, or to have or keep a pistol in his possession, or under his control. . . .” The thrust of the defendant’s argument is, very simply, that the statute fails to meet constitutional standards of equal protection. Although we have held the statute to be constitutional on other grounds (State v. Bolin, 200 Kan. 369, 463 P. 2d 978) the exact point now before us has not heretofore been raised on appeal, nor have we passed upon it. It is now urged that invidious discrimination exists betwen persons who have previously been convicted of the specific offenses named in the statute, and those who have been convicted of other offenses not named therein. The defendant argues that so far as prohibiting the possession of a pistol is concerned there is no rational basis for distinguishing between persons previously convicted of one of the offenses delineated in K. S. A. 21-2611 and persons convicted of other offenses. In other words, the defendant avers the classification of offenses spelled out in K. S. A. 21-2611 is unreasonable within the purview of the constitutional guarantee of equal protection. Reliance for this viewpoint is largely predicated on the decision in Skinner v. Oklahoma, 316 U. S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110, where the United States Supreme Court determined that an Oklahoma statute which authorized the sterilization of habitual criminals, after notice and trial, was unconstitutional. The statute defined an habitual criminal as any person having had two or more convictions for felony, but specifically exempted embezzlement, political offenses and violations of the prohibitory and revenue laws, from the provisions of the act. In deciding that the statute offended against the equal protection •clause, the federal court pointed out that the line attempted to be •drawn beween larceny on the one hand (included as a crime within the meaning of the statute) and embezzlement on the other (an •offense not so included) was artificial and meaningless. Delving momentarily into the area of eugenics, the court observed there was no scientific basis for an inference “that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses.” The fatal defect which lead to the ultimate demise of the Okla homa sterility statute is not inherent in K. S. A. 21-2611. In our view, the classification attempted in the Kansas statute is not unreasonable in its relation to the evil sought to be cured. For the most part, the crimes listed in the statute are crimes of violence against persons, the repetition of which by a previous offender who has armed himself with a pistol, might well bring serious physical harm to his victim. As to burglary, extortion, larceny and aiding escape, the possibility of personal confrontation during their commission is always present, with potential hazard to the poor wretch who might be so unfortunate as to gaze into the working end of the ex-felon’s pistol. A receiver of stolen property jeopardizes public safety through his dealing in guns and other dangerous weapons, while the possibility of danger to human security from a pistol in the hands of a dope addict is too obvious to require extended comment. The legislature, acting in pursuance of the police power of the state, is empowered to adopt measures in furtherance of the public welfare and its enactments in that area are not to be judicially curtailed where they reasonably relate to the legitimate ends sought to be accomplished. Classifications honestly designed to protect the public interest against evils which might otherwise occur, are to be upheld unless they be unreasonable, arbitrary or oppressive. (Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 877.) In the Tri-State case, this court reiterated the time-honored rule that due process permits the exercise of a wide scope of discretion by the legislature in establishing classifications in the exercise of its police powers, and the law vitiates what is done in such connection only where there is no rational basis for its support. Justice Holmes, in authoring the decision in Patsone v. Pennsylvania, 232 U. S. 138, 58 L. Ed. 539, 34 S. Ct. 281, expressed this legal maxim, with his usual lucidity, in these words: “. . . [W]e start with the general consideration that a State may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named. . . .” (p. 144.) It may not be amiss to observe at this time that under the provi sions of § 21-4204 (b) of the new Kansas Code of Criminal Procedure, which supersedes K. S. A. 21-2611 and is to become effective July 1, 1970, the classification of prior convictions set out in the present statute has been entirely deleted. This fact, however, in no wise detracts from the validity of the act as it now stands. We have examined other points raised by the defendant on this appeal and find them to be without merit. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Kaul, J.: Plaintiff-appellant, a teacher, brought this action against her former employer, the defendant-appellee school district, to recover damages for breach of a contract of employment. The issue concerns plaintiff’s termination of employment which she claims was forced by defendant’s adoption of a new retirement policy alleged to be contrary to state law and thus null and void. Defendant district claims plaintiff’s retirement was voluntary; that its retirement policy conformed with state law; and further that plaintiff by her acts, conduct and failure to pursue available administrative remedies was estopped and barred from maintaining any claim against defendant. The trial was to the court. At the conclusion of plaintiff’s evidence, which consisted of her testimony and a number of exhibits, the trial court sustained, at the instance of defendant, what was entitled a “Motion for Directed Verdict.” Notwithstanding the title, the motion was based on the grounds set forth in K. S. A. 60-241 (b) for involuntary dismissal. The trial court ruled plaintiff’s retirement was voluntary, and thus the question whether defendant’s retirement policy contravened the provisions of the Tenure of Instructors Act (K.S.A. 72-5401-72-5409, [72-5401, 72-5403 and 72-5406 now 1969 Supp.]) as claimed by plaintiff became immaterial. The controlling issue on appeal is whether the trial court’s findings are supported by substantial evidence. In making this determination we are required to consider the evidence in its most favorable aspect in relation to the party who prevailed in the court below. (Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P. 2d 521; and Frame, Administrator v. Bauman, 202 Kan. 461, 449 P. 2d 525.) There is very little dispute about the facts, which were developed by stipulation of the parties at the pretrial conference and the testimony of the plaintiff at the trial. Plaintiff was a career teacher having taught for more than thirty-five years. She had tenure as defined in 72-5401, et seq., supra. She was also a covered employee under the State System for Retirement and Payment of Annuities Act (K. S. A. 72-5501, et seq., now 1969 Supp.) and the Wichita School Employees Supplemental Retirement System (K. S. A. 72-17,108, now 1969 Supp.). On April 1, 1965, plaintiff entered into a contract with the Wichita Board of Education, predecessor of defendant herein. Under the terms of the contract plaintiff was employed as an instructor at an annual salary of $10,320.00 for a term commencing August 1, 1965, and ending June 17,1966. For several years plaintiff had served as principal of Brookside Elementary School and continued in that position during the 1965-1966 school year. On January 4, 1965, defendant adopted its Retirement Policy No. 4145, under the provisions of which plaintiff, who became sixty-eight years of age on November 4, 1965, was subject to retirement. The retirement policy, in the case of employees subject to retirement on account of age, afforded the opportunity for continued employment by mutual agreement between the employee and school district on a year to year basis, but not beyond September 1 of the school year in which the employee attained the age of seventy. As a school principal, plaintiff regularly received copies of the minutes of the Board of Education meetings, but she did not remember reading the minutes of January 4, 1965, meeting. She did recall receiving notice of the adoption of the retirement policy which was mailed to all school employees on May 11, 1965. Plaintiff made no complaint to any board member or administrative officer of defendant concerning the adoption of the retirement policy. In the summer of 1965, plaintiff investigated an opportunity for employment with the Peace Corps. In this regard, on October 14, 1965, plaintiff wrote to Dr. Alvin E. Morris, Deputy Superintendent of Schools, as follows: “October 14, 1965 “Dr. Alvin E. Morris “Deputy Supt. of Schools “428 S. Broadway “Wichita, Kansas “Dear Dr. Morris: “I have been looking into opportunities for service in the Peace Corps and have been so bold as to use your name as reference. “This interest is merely exploratory and I would hope that this might be confidential. “Please accept my thanks for your many courtesies, “Very truly, “cc: Mr. Colvin — I used your name as reference also. Hope this is all right. “V. B. W.” The Mr. Colvin referred to was Assistant Superintendent in charge of personnel. When this letter was written, plaintiff had not received notice that she would be subject to retirement the following year. On December 1, 1965, plaintiff, as well as other employees over sixty-seven years of age, received a notice informing her she was subject to retirement on September 1, 1966. A form for a request for reemployment for the 1966-1967 school year was enclosed with the notice. Plaintiff signed and returned the request for consideration for reemployment. Prior to any action by defendant on her request for reemployment, plaintiff on January 31, 1966, wrote to Dr. Morris withdrawing her request for reemployment and announcing her intention to retire at the end of the school year. The body of the letter reads: “Dr. Alvin E. Morris “Deputy Supt. of Schools “428 S. Broadway “Wichita, Kansas 67202 “Dear Dr. Morris: “At the time I applied for a year’s extention at Brookside, I had not been able to check very accurately on my years of service in Kansas. Recently, the retirement clerk and I have been able to make some corrections and I find it would be advantageous for me to retire this year. “Besides the above problem, I had not yet taken my physicals for the Peace Corps. These were completed last week. I am fortunate indeed to have such excellent health. Now, it looks as if I will be able to start training next July ■or August. I am very enthusiastic about this and want to do this now while X can really enjoy the experience and be able to make a worthwhile contribution. Therefore, I would like to retire at the end of this school year. “Many thanks for your kindness and patience. I hope this change in my plans will cause no embarrassment to anyone. “I would have liked very much to have been a part of the change, if any, in the Plainview schools. However, I know that I am not indispensible. I have enjoyed the years I have spent in the schools and hope I have been able to leave a part of myself in them. I have learned to love the people in this area and have suffered with many of them. “Respectfully, “Vivian B. Wiley.” On March 4, 1966, plaintiff’s intention to retire was acknowledged by defendant in the form of a letter signed by the Assistant Superintendent in charge of personnel. At its regular meeting on March 7, 1966, the board of defendant district formally accepted plaintiff’s notice of retirement. The records of the board’s action shows that plaintiff was terminated effective July 29, 1965. The reason was shown as “retiring.” The evidence shows that plaintiff proceeded with her retirement plans by selling her residence in Wichita, by applying for benefits associated with her employment as a teacher and for benefits under the Social Security Laws. In June of 1966 she enrolled at Princeton University in a training course for Peace Corps employment. According to her testimony, plaintiff was unable to accept an assignment with the Peace Corps and in August 1966 applied for and received employment as a sorority housemother at the University of Florida. In April of 1966 a story appeared in a Wichita newspaper relating an interview with plaintiff concerning her retirement as a teacher and prospective Peace Corps assignment. In a letter, dated April 19, 1966, Dr. Lawrence H. Shepoiser, Superintendent of Schools of defendant district, referred to the news article, complimented plaintiff and thanked her for her many years of service as a teacher and principal. Following her letter of January 31, 1966, in which she announced her intention to retire, plaintiff did nothing inconsistent with her declared intention until she filed this lawsuit on October 20, 1967. After hearing the evidence, which we have summarized, the trial court ruled: “Gentlemen, aside from the validity or invalidity of the adopted policy of 1965 on the part of the Board of Education, certain facts are extremely compelling as far as the Court is concerned. “The plaintiff was given the option of accepting her retirement or of making application for re-employment for the succeeding school year. This she chose to do. And while this application is pending, with no action having been taken on it whatsoever, she does write this letter. And in the letter, I have read it very, very carefully here, she refers to the advantage to herself in taking her retirement at this time, after having checked with the Betirement Clerk in making some corrections in the records. She enthuses about her work with the Peace Corps. She says, quoting directly now: ‘I am very enthusiastic about this and want to do this now’ with ‘now’ underlined, ‘while I can really enjoy the experience and be able to make a worthwhile contribution. Therefore, I would like to retire at the end of this school year,’ and in the next paragraph she refers to her change in plans. She says, 1 hope this change of plans will cause no embarrassment to anyone.’ “Thereafter she made no request for re-employment, but considering the plaintiff’s evidence in its best light, the Court can only conclude that the retirement was voluntary under the evidence that I have before me. “I am going to sustain the motion for a directed verdict in favor of the defendant.” The intention which appears from a reasonable interpretation of plaintiff’s letter of January 31, 1966, corroborated by the evidence of her subsequent acts and conduct, is clearly sufficient to support the trial court’s finding that plaintiff’s retirement was voluntary. The function and duty of the trial court in considering motions for dismissal under the provisions of K. S. A. 60-241 (b) of the new code of civil procedure were considered in Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P. 2d 847, wherein our previous construction of the statute in Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P. 2d 575, was over ruled in order to conform with the 1946 amendment to the parallel federal rule. (28 U. S. C. A., Federal Rules of Civil Procedure, Rule No. 41 [b], Trials, p. 334.) In Mackey-Woodard, Inc. v. Citizens State Bank, supra, we held the proper construction of K. S. A. 60-241 (b) to be: “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 (b), 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, overruling Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P. 2d 575.” (Syl. ¶ 7.) In Waterstradt v. Board of Commissioners, 203 Kan. 317, 454 P. 2d 445, the trial court, as in the instant case, made findings of fact and sustained defendants motion to dismiss. The construction of 60-241 (b), supra, announced in Mackey-Woodard, Inc. v. Citizens State Bank, supra, was restated and adhered to. The declared intention in plaintiff’s letter and her many acts in carrying out that intention were before the trial court when the defendant’s motion was presented. The thrust of plaintiff’s contention on appeal is that we should reweigh those facts in the light of airy conflict or inconsistency shown in the evidence. This is beyond our scope of review, which is simply to ascertain whether the trial court’s findings are supported by substantial competent evidence. As previously pointed out, in making this determination, we are required to consider the evidence in the light most favorable to the party who prevailed below. (Frame, Administrator v. Bauman, supra.) Plaintiff argued before the trial court and now on appeal that her retirement was not voluntary but coerced by reason of defendant’s retirement policy which is claimed to be in violation of the tenure law (72-5401, supra, and K. S. A. 72-5412, now 1969 Supp.). In making its decision the trial court stated that it had considered plaintiff’s evidence in its best light. In other words, any suggestion from the evidence that plaintiff’s retirement was coerced by reason of defendant’s retirement policy, viewed in its best light, was, nevertheless, overcome by the persuasive evidence of plaintiff’s letter of January 31, 1966, and her many acts and conduct indicating voluntary retirement. Plaintiff’s letter of October 14, 1965, indicates that she was considering Peace Corps assignment prior to the notice that she was subject to retirement received on December 1, 1965. Even though plaintiff requested consideration for employment during the 1966-1967 school year, the request was clearly withdrawn by the terms of her letter of January 31, 1966. She received defendant’s acknowledgment of her intention to retire on March 4, 1966, and on March 7, 1966, defendant took formal action on her notice of retirement. Plaintiff took no exception to these matters but conducted herself in a manner wholly consistent with her declared intention to retire. Even though, as plaintiff claims, there was some evidence which might support her theoiy, the trial court had the authority and duty to weigh and evaluate the evidence under Waterstradt v. Board of Commissioners, supra. Since there is substantial competent evidence to support the trial court’s findings they cannot be disturbed on appeal. Since plaintiff’s retirement was voluntary any issue concerning the invalidity of defendant’s retirement policy is immaterial. The judgment is affirmed.	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The opinion of the court was delivered by Price, C. J.: This is an action by lessees against their lessor for damages resulting from the alleged breach of the written lease agreement. Judgment was for plaintiff lessees, and defendant lessor has appealed. The decisive question in the case involves the interpretation and enforceability of one provision of the lease. For a number of years prior to 1963 the Santa Fe Railway was the owner of a 40-acre tract of land just west of Emporia adjacent to its railroad tracks. The south 3 or 4 acres were used by the Santa Fe in its operations. The remainder of the tract was for many years leased by the railroad to plaintiff Andersons and was used by them in their large-scale cattle feeding operations. The improvements and equipment were owned by the Andersons and placed there at their expense. In June 1963 Santa Fe sold and conveyed to Armour and Company approximately 30 acres of the 40-acre tract for the construction of a packing plant. The Andersons relinquished their lease rights in the 30 acres thus sold, and entered into a written lease with Armour covering the west 13.75 acres of the 30-acre tract bought by Armour from Santa Fe. This lease from Armour to the Andersons was entered into on June 18, 1963, and was for a term of five years commencing July 1, 1963 and ending June 30, 1968. It provided that either party had the right to terminate the lease at the end of the third or fourth year of the five-year term by giving written notice of intention to terminate not less than 12 months prior to the end of the third or fourth year, as the case may be. The lease also contained the following provision — the alleged breach of which by Armour resulted in this law suit: “In the event the Lessor desires to sell the premises, the Lessor agrees to notify the Lessee in writing of such intention and of the purchase price and shall allow Lessee fifteen (15) days from day of mailing such notice within which to attempt to negotiate a purchase and sale contract for the premises with the Lessor.” In passing — it is noted the lease further provided that lessees were prohibited from filing it or a copy thereof in the office of register of deeds of Lyon county or in any other public office, and that if the same should be done the entire lease — at the option of lessor — would be null and void and of no further force and effect. The parties operated under the lease for several years, and neither party exercised the right to1 terminate. In the fall of 1967, however, Armour closed down its packing plant, and on November 29, 1967, conveyed by warranty deed the entire 30 acres — including the 13.75 acre tract under lease to the Andersons — to Iowa Beef Packers, Inc. In violation of the above quoted provision of the lease — Armour admits that it gave no notice to the Andersons of its plan to dispose of the property. Several months later — on March 25, 1968, Armour wrote to the Andersons and informed them of the conveyance and that the lease in question had been assigned to Iowa, the purchaser. On October 25, 1968, the Andersons filed this action against Armour. Without detailing the allegations of the petition — the basis of the action was that the tract in question had a unique value to them and that because of Armour’s failure to notify them of the proposed sale to Iowa they were deprived of the use of the tract and the opportunity to purchase the same — all to their damage in the amount of $75,000.00. Armour’s answer alleged that the provision of the lease relied on by the Andersons was vague, indefinite, uncertain and unenforceable and therefore of no force and effect, but that if valid and enforceable it was not breached in that it applied only to the 13.75 acre tract and that in fact such tract was not “sold” but rather was “traded” as an essential part of other related property. Damage was denied. The case was tried by a jury which answered special questions and returned a verdict for plaintiff Andersons in the amount of $25,000.00. Judgment was entered thereon, and defendant Armour has appealed. As stated — the real question in the case concerns the interpretation and enforceability of the quoted provision of the lease. Briefly stated — Armour contends the provision is unenforceable because it is vague and uncertain; that it contains no price or formula by which price can be determined; that it is nothing more than an agreement to make a contract and as such is not binding because all of the terms and conditions were not agreed upon and stated therein. On the other hand — the contention of lessees (plaintiff Andersons ) can best be stated by quoting from their brief: “The principal issue is whether or not the pertinent clause in the lease between the parties created an enforceable right. Before reviewing the applicable authorities we call the court’s attention to a basic distinction between the terms of an option’ in a lease or other instrument as compared to- a right of preemption’, which is some times referred to as a ‘first right of refusal’, or ‘first right to purchase’. In the case of an option it is consistently held that the terms by which the optionee may buy the property must be set out in detail in the lease or other instrument granting the option because the lessor or party giving the option has no discretion in the matter. The optionee has the absolute right to proceed under the terms of the option regardless of whether the optionor desires to sell the property. A right of pre-emption, on the other hand, is a right which does not come into existence unless the lessor or party giving the right decides to sell the property. At the time that decision is made the terms or price of the property are then, communicated to the party having the right of pre-emption, who can then elect to buy the propperty at the price quoted within the time stated in his right of preemption. The terms of the proposed sale do not need to be definite in the original instrument granting the right of pre-emption because the terms are something which are within the control of the person giving the right and are specified by him only at such time as he decides to sell. The courts sometimes use language to the effect that a right of pre-emption ripens into an option when the lessor decides to sell, but before that time the basic distinction between an option and a right of pre-emption remains.” The foregoing theory as to the distinction between an “option” and a “right of pre-emption” is supported by numerous authorities, and we believe is sound. Barling v. Horn, 296 S. W. 2d 94 (Missouri, 1956) was an action for specific performance of a clause in a lease whereby the lessees were to have the first opportunity to purchase the premises if the lessors decided to sell prior to the expiration of the lease. The lessors sold the property to a third party. It was held that the clause gave lessees a right of pre-emption, was supported by consideration, and that lessees should have been given an opportunity to purchase the property under the same terms and conditions as it was sold. Headnote 4 of the case reads: “Where lease gave lessees first opportunity to purchase if lessors decided to sell, when lessors decided to sell they were obligated, before they consummated a sale to another, to afford lessees the first opportunity to purchase at the price and upon the terms lessor had decided on, even though the lease did not stipulate price or terms.” To the same effect is Weintz v. Bumgarner, 150 Mont. 306, 434 P. 2d 712 (1967) in which it was held that a provision in a lease that the owner agreed to give the tenant written notice of specific intention to sell and to permit tenant to have ten days in which to arrange purchase of the premises was not void for vagueness or uncertainty, but meant that at such time as the owner formed an intention to sell on specific terms and conditions he was required to give the tenant written notice of such intention and give tenant ten days in which to arrange purchase of the property on the same terms and conditions, and thereafter if the tenant did not arrange such purchase with the owner, the owner was free to sell the property to another person subject to the existing lease. Paragraphs 2 and 3 of the syllabus read: “A pre-emption differs from an option in that a pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell, but merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption, at the stipulated price, and upon receiving such an offer, the pre-emptioner may elect whether he will buy, and if he elects not to buy, then owner of the property may sell to anyone. “Under a lease giving tenant a pre-emptive right of purchase, at such time as the owner forms a specific intention to sell such right ripens into a present enforceable contract right of the tenant to purchase.” Tinkler v. Devine, 159 Kan. 308, 154 P. 2d. 119, involved the enforceability of a lease provision similar to the one before us. It was held: “An option clause in a lease provided that if the lessor should find a buyer, the lessee should have the first right to purchase but that the offer must be accepted within seven days after notice, held, that under such a clause the lessee must accept or reject the offer within seven days but had a reasonable time to comply with the terms of the contract of sale. (Syl. 1.) “A tenant in possession of real estate under a lease had an option to purchase the real estate on the same terms as the land should be offered to a third party, the land was sold to a third party who had notice of this option without notice to tire lessee, held, the lessee was entitled to specific performance of the contract even though the land had been conveyed to the third party.” (Syl. 2.) Application of what has been said to the provision here in question is clear. It gave the lessees (Andersons) a pre-emptive right of purchase, and, when Armour decided to sell, such right ripened into an enforceable contract right of the Andersons to purchase, and the trial court was correct in so concluding. Absent a substantial question of material fact, the interpretation of a contract becomes a matter for the court (McAfee v. City of Garnett, 205 Kan. 269, syl. 6, 469 P. 2d 295). Other matters urged by Armour require but brief discussion. For example, it is contended that the clause in question was not breached because a larger tract — the entire 30 acres — was disposed of, — and further — its transaction with Iowa was a “trade or exchange” of property rather than a “sale” in the strict sense of the word. Both contentions are completely untenable. While it is true the clause in the lease had reference only to the 13.75 acres leased to the Andersons — it was Armour who prepared the lease and if it was intended that the provision not apply in the event Armour desired to sell more than just that tract — the clause could have so provided. And, while it also is true that the deal between Armour and Iowa involved an exchange of properties together with cash— the deed from Armour recited "bargain, sell and convey”. Further, as far as the Andersons were concerned — the 13.75 acres were effectively "sold” and placed beyond their reach — regardless of the details of the transaction between Armour and Iowa. What has been said disposes of any question as to the trial court’s refusal to give Armour’s requested instruction No. 1, and the objection to a portion of the court’s instruction No. 3. The remainder of that instruction was substantially identical to Armour’s requested instruction No. 2 which was given— “You are instructed that if you find that Plaintiffs are entitled to recover damages hereunder for the loss of a right to purchase the 13.75 acre tract in question, the burden of proof of the amount of such damages is upon Plaintiffs. The proper measure of such damages is the difference between the fair market value of the tract without improvements and the fair market value of the tract as it was improved on the 29th day of November, 1967, less the salvage value of such improvements. “2. What was the fair market value of the 13.75 acres on November 29, 1967, with improvements thereon? “3. What was the fair market value of the 13.75 acres on November 29, 1967, without improvements?” Having requested the instruction — Armour may not now be heard to complain. In answer to special questions the jury found the value without improvements to be $55,000.00 and with improvements to be $80,-000.00, and returned a general verdict for plaintiff Andersons for the difference — $25,000.00. Finally, it is contended there was no substantial evidence to establish any damage suffered by the Andersons. The testimony as to the large amount of expensive equipment placed on the tract for use in feeding several thousand head of cattle will not be detailed. It is sufficient to state the plaintiffs’ evidence as to value of the tract with the improvements ranged from $125,000.00 to $150,-000.00 and without the improvements from $55,000.00 to $68,750.00. Had they been given the opportunity to buy the tract they would have been required to pay the value of it without improvements— which they already owned. Therefore, it follows their damages were limited to the value of the tract with the improvements as compared to its value without the improvements — and this was the measure of damages stated by Armour in its requested instruction No. 2. The verdict was well within the evidence. Other points have been noted, but need not be discussed. Running all through this case is the fact that Armour simply breached the lease provision in question. We find nothing in the record approaching reversible error and the judgment is affirmed. Schroeder, J., dissenting.	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The opinion of the court was delivered by Kaul, J.: Defendant, Annas Brown, was charged in the magistrate court of Reno County with procuring an abortion under the provisions of K. S. A. 21-437. On July 12, 1968, defendant was tried, convicted and sentenced by the magistrate court to a term of one year in the Kansas State Industrial Farm for Women and to pay a fine in the amount of $500. Defendant appealed to the district court. On October 28, 1968, defendant appeared for arraignment and trial in the district court. Defendant refused to enter a plea and moved for dismissal of the complaint and discharge on the ground the district court did not have jurisdiction because the complaint had not been certified as required by K. S. A. 63-401 and 402 (now 1969 Supp.). The district court entered a plea of not guilty for defendant and recessed the trial in order that counsel might present arguments on the matter. A jury venire was in attendance at the courthouse, but had not been called for voir dire examination. The proceedings of the magistrate court were certified to the district court by the clerk of the magistrate court. The defendant argued she could not be put on trial in district court unless the original complaint was certified by the magistrate himself. At this juncture the county attorney asked leave to call the judge of the magistrate court, who was present, as a witness to identify and certify the original complaint and all other records in the case. The defendant opposed the request of the county attorney on the ground that a term of the district court had expired since the trial in magistrate court and, therefore, an attempt to remedy die defect at this point would be in violation of 63-401, supra, which requires certification of the complaint on or before the first day of the next term of the district court. The trial court ruled: “. . . There being no certification of the Annas Brown transcript by the magistrate court judge prior to commencement of the September term of this court, it is the opinion of this court that it cannot be amended since there is a new term of court. The motion of the defendant to halt further proceedings herein is granted.” This appeal by the state ensued. The magistrate court of Reno County was established by K. S. A. 1967 Supp. 20-2541 [now 1969 Supp.], and according to the provisions of K. S. A. 1967 Supp. 20-2549 [now 1969 Supp.] criminal procedure before justices of the peace, set out in Chapter 63 (K. S. A.), was applicable at the time. Procedures for criminal appeals from a justice of the peace are found in 63-401 and 402, supra. The portion of 63-401, with which we are concerned, reads: “The justice from whose judgment the appeal is taken shall make return of the proceedings had before him, and shall certify the complaint and warrant together with all the recognizances to said district or criminal court on or before the first day of the term thereof next thereafter to be holden in the county; . . .” This section was amended in 1969 and certification by a clerk of the justice of the peace is now authorized. (K. S. A. 1969 Supp. 63-401.) Section 63-402 provides in substance that the district court shall hear any cause brought by appeal from a justice of the peace upon the original complaint, unless such complaint be found insufficient and defective in which event the court shall at any stage of the proceedings order a new complaint to be filed therein. This section has also been amended and authorizes the district court to hear the cause upon the original complaint or copy thereof certified as provided in K. S. A. 63-401, now 1969 Supp. The requirements of 63-401, pertaining to certification of the original complaint by a justice of the peace, have been considered by this court in a number of cases. In the case of State v. Belisle, (1948) 164 Kan. 171, 188 P. 2d 642, what appears to be a complete list of all prior decisions dealing with the subject is set out on page 173 of the opinion. Justice Burch speaking for the court in Belisle reviews many of the prior decisions. It is unnecessary to extend this opinion by restating all that was said in Belisle. It will suffice to say the cases therein reviewed establish that the purpose of the statute is to insure and safeguard a defendant’s right to be tried for the same offense in the district court, for which he was tried in the lower court, and that he be afforded a speedy trial in district court. In the instant case the record of the magistrate court, including the complaint and warrant, was promptly certified to the district court by the duly appointed clerk of the magistrate court. The county attorney says the complaint included in the transcript is the original and the defendant makes no contention to the contrary; her only objection on this point being that it was not certified by the magistrate himself. The state recognized the certification was not in strict compliance with the statute and attempted to cure the defect by producing the magistrate in the district court before the jury was impaneled and sworn. The district court denied the state’s request to cure the certification on the ground that a term of the district court had expired since the trial in magistrate court. Thus the sole question before us on this point is whether the district court abused its discretion in denying the state’s request under the circumstances existing. Defendant argues that to allow certification of the magistrate on October 28, 1968, would have the effect of relating back to July 12, 1968, and thus would circumvent the requirement of 63-401, that the original complaint be certified on or before the commencement of a new term of the district court. Defendant relies heavily on the case of State v. Durein, 65 Kan. 700, 70 Pac. 601, to support her position. In Durein a district court conviction, after an appeal from a justice of the peace was, reversed for two reasons: (1) the justice of the peace was permitted to certify the complaint after the jury had been impaneled and examination of a state’s witness had been commenced and (2) the justice of the peace was outside his township of office when he certified the complaint. On the first point this court said in the opinion that there is no rule which will give the certification of a complaint during a trial “relation back as of the time it should have been filed or certified.” The relation back spoken of referred to the fact the trial had commenced and jeopardy attached in Durein, rather than that a term of court had expired. In the instant case the state’s request for permission to correct the certification was made prior to trial and the magistrate was within his jurisdiction. In City of Salina v. Laughlin, 106 Kan. 275, 187 Pac. 676, a defendant went to trial in district court on an uncertified complaint without making an objection. On appeal this court held that under such circumstances the defendant had waived the lack of certification and stated in the opinion: . . Had the attention of the court been challenged to the matter now complained of it would have been the duty of the court to postpone the proceedings and order the complaint and warrant properly certified. (The State v. Plomondon, 75 Kan. 853, 90 Pac. 254.) ...” (p.276.) In the Plomondon case the objection was made prior to trial, as in this case. The defendant — as here — cited State v. Anderson, 34 Kan. 116, 8 Pac. 275, and State v. Durein, supra, in distinguishing Plomondon from those cases the court said: “. . . But here, before the trial commenced, the court postponed the proceedings in order that the justice before whom the first trial was had could attach his certificate and thus complete his transcript. This is the proper pratice. The State v. Geary, 58 Kan. 502, 49 Pac. 596.)” (pp. 853, 854.) A new term of the Reno district court commenced on September 23, 1968. The state’s request to cure the certification was presented to the district court on the day set for trail, October 28, 1968. It appears the record had been promptly, though incorrectly, certified up from the magistrate court. The defendant filed a motion to suppress evidence on September 24, 1968. The motion was heard and denied on September 27, and the case set for trial on October 28,1968. Obviously, no time was lost because of certification by the clerk rather than the magistrate. There is no indication whatsoever that defendant could have been tried prior to October 28,1968. State v. Brockelman, 173 Kan. 469, 249 P. 2d 692, is the only case called to our attention in which the time requirement of 63-401, supra, is discussed by this court. There the justice of the peace failed to certify the transcript to district court for a period of more than one year because of the county attorney’s direction to hold up the case. The duty of the justice of the peace to certify the transcript to the district court on or before the next term was pointed out. However, a careful reading of the opinion reveals that the decision actually rested on the violation of the defendant’s constitutional right to a speedy trial, rather than a technical violation of the statute, in failing to certify before the next term of court. The holding set forth in the syllabus refers only to the constitutional guarantee of a speedy trial. In the Brockelman opinion the intention of the statute, with respect to time of certification, is set out in these words: “The statute is intended to prevent the oppression of a citizen by holding criminal prosecutions suspended over him for an indefinite time, and to prevent delays in the administration of justice by imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal cases. It is a direction to the prosecuting officer to act and not delay the prosecution of those charged with crime.” (p. 472.) To guarantee defendant a trial on the same charge the statute requires that the original complaint be certified to the district court. This requirement is clearly mandatory. The provision that the complaint be certified on or before the commencement of the next term of the district court is a direction against delay and to afford defendant a speedy trial. As was indicated in Brockelman, we believe this provision to be directory rather than mandatory and, in the absence of delay amounting to infringement of defendant’s right to a speedy trial, the state should be allowed to cure a defective certification. The essence of the requirements of 63-401, supra, is that the original complaint be certified to district court. In order to secure a speedy trial to defendant, the justice of the peace is directed to certify the complaint before commencement of a new term of district court. Where the direction of a statute is given with a view to the proper, orderly and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition. (Wilcox v. Billings, 200 Kan. 654, 438 P. 2d 108; 82 C. J. S., Statutes, § 376, pp. 869, 872; 2 Sutherland Statutory Construction [3rd Ed.] § 2801, p. 214.) A pertinent statement appears in 50 Am. Jur., Statutes, § 23: “In many cases, statutory provisions as to the precise time when a thing is to be done are not regarded as of the essence, but are regarded as directory merely. This rule applies to statutes which direct the doing of a thing within a certain time without any negative words restraining the doing of it afterwards. . . .” (p. 46.) While the complaint here was not certified by the justice of the peace, it cannot be said to be entirely without authentication. It was certified by the duly appointed and qualified clerk of the magistrate court. (L. 1965, Ch. 231, §5, now K. S. A. 1969 Supp. 20-2545.) The order appointing the clerk and her oath of office are included in the record. In the case at bar the state sought permission to secure certification by the magistrate before trial commenced in district court. There is no showing whatsoever that the deficient certification delayed defendant’s trial, or that her rights were prejudiced in any way. We believe defendant’s right to a speedy trial on the original complaint was adequately safeguarded and that the trial court’s denial of the state’s request for permission to correct the certification, under the facts related, was an abuse of discretion. The second specification of error by the state is that the trial court erred in sustaining defendant’s motion to suppress evidence. The evidence in question was seized under authority of a search warrant which the trial court held did not sufficiently describe the items to be seized. The search warrant was issued by the magistrate pursuant to an affidavit made by a police officer. In pertinent part the search warrant reads as follows: “Having evidence under oath before me from which I find that there is probable cause to believe that an offense against the laws of the State of Kansas has been committed, to-wit: K. S. A. 21-437, and that certain items of property, to-wit: “Various instruments and tools used in performing an abortion, which were instrumentalities of such offense are located in or upon or within a certain house located at the following premises, to-wit: “Lots 35 and 36, Block 4, Fay Smith Addition to Hutchinson, Reno County, Kansas, more commonly known as 1508 East 5th, Hutchinson, Reno County, Kansas, and/or any outbuildings, garages or any part thereof.” Defendant argues the warrant fails to particularly describe the things to be seized and amounts to a general search warrant, exploratory in nature and, therefore, violates K. S. A. 62-1830 and 1831, and the Fourth Amendment to the Constitution of the United States. The state, on the other hand, contends that because of the nature of the property involved here a technical identification or description would have necessitated the expertise of a trained surgeon. Under the circumstances existing, we believe the property to be seized was described with reasonable particularity. Constitutional specificity of property described in a search warrant was considered by this court in the recent case of State v. Walker, 202 Kan. 475, 449 P. 2d 515, where it is stated: “Appellant contends the trial court erred in receiving in evidence the items seized at appellant’s apartment because the warrants were not constitutionally specific as to the premises to be searched or the property to be seized. As to the latter, the affidavit for the search warrant and the search warrant described the property to be seized as ‘cooking utensils,’ which we think was sufficient. . . .” (479.) In Walker the property described was alleged to be fruits of the crime charged, (burglary in the second degree) In the case at bar the items of property described are declared to be instruments and tools used in the perpetration of the crime and were instrumentalities of the offense. State v. Ferrari, 80 N. M., 714, 460 P. 2d 244, dealt with the sufficiency of the description of instruments of the crime charged. The court said: “The appellant complains that the warrant itself was constitutionally defective because it was a general warrant authorizing a search for any item in five separate places relating to the death of an unknown individual whose body had been found at described location, and for specific items completely unrelated to any statement of fact in the affidavits. This contention must be rejected. A description in a warrant which does not name items seized but includes instruments of the crime is not so vague as to invalidate the search warrant. United States v. Robinson, 287 F. Supp. 245, (N. D. Ind. 1968). Likewise, any item relating to the death is not so vague as to render the warrant invalid. . . .” (p. 718.) In State v. Seefeldt, 51 N. J. 472, 242 A. 2d 322, a description of “weapon or weapons used in the crime of murder” was challenged for want of specificity. The court said: “The description contained in the warrant instructed the executing officer to search defendant’s apartment and automobile for ‘weapon or weapons used in the crime of murder, bloodstained clothes or rags and other instruments or paraphernalia used in crime of murder.’ (Emphasis added.) It cannot be maintained that the phrase ‘bloodstained clothes’ is not sufficiently specific to cover the seizure of the bloodstained carcoat. The other phrases in the description likewise were of adequate specificity to eliminate any room for the exercise of discretion by the searcher as to the items to be seized. See Manon «. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231 (1927). See also Stanford v. State of Texas, 379 U. S. 476, 486, 85 S. Ct. 506, 13 L. Ed. 2d 431, 437 (1965). To require a more detailed description in these circumstances would be to push the Fourth Amendment to absurdity.” (p. 490.) The difficulty encountered when circumstances make an exact description a virtual impossibility was considered in James v. United States, 416 F. 2d 467 (5th Cir. 1969), wherein the court said: “. . . His counsel argues that the search was a general exploratory one in violation of the Fourth and Fifth Amendments, and that probable cause was not demonstrated in the affidavits. We do not agree. The search was for the instrumentalities involved. It was not general. It was not exploratory. The place to be searched and the items to be seized were as precisely identified in the warrant as the nature of the activity permitted. When circumstances make an exact description of instrumentalities, a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking. . . .” (p.473.) Defendant cites Stanford v. Texas, 379 U. S. 476, 13 L. Ed. 2d 431, 85 S. Ct. 506, wherein a warrant describing the things to be seized as books, records, pamphlets, etc., concerning the Communist Party of Texas, was held to be constitutionally deficient. The court emphasized the fact, however, that the things to be seized in Stanford were books, and that when the basis for their seizure is the ideas which they contain, the most scrupulous exactitude is required. The description of property in the Stanford search warrant is obviously distinguishable from the description of the things to be seized in the case at bar, which were described as instrumentalities of the crime charged. For this reason the cases are not analogous. In view of what has been said the orders of the trial court appealed from are reversed and the cause remanded with directions to permit the state to secure certification of the original complaint by the magistrate and to reinstate the complaint for further proceedings in accordance with the views expressed herein. Fontron, J., not participating.	[ -16, -22, -83, -35, -86, -31, 114, -88, 91, -93, 100, 115, -27, -54, 20, 127, 75, 61, 85, 105, 66, -78, 23, 65, 118, -5, -40, -41, -69, 95, -12, -4, 72, -80, -118, 21, 70, -126, 3, 24, -122, 2, -103, -16, 81, 2, 32, 41, 114, 15, 117, 126, -93, 43, 126, -61, -24, 104, 91, -83, 72, -47, -101, -99, 46, 2, -79, -92, -106, -123, 120, 62, -112, -71, 34, 104, -77, -106, -126, -12, 79, -103, 40, 118, 66, 97, 29, -17, 104, -115, 15, 63, -115, -90, -104, 88, 75, 8, -106, -99, 108, 86, 35, -2, 101, 68, 63, 44, 2, -53, -14, -79, -113, 36, -126, -103, -29, -92, -80, 49, -115, -10, 120, 71, 56, 26, -50, -66 ]
The opinion of lie court was delivered by Fontron, J.: This is an action to recover damages for breach of contract. Trial was had to the court which entered judgment in favor of the plaintiff. The defendant has appealed. Southwest Engineering Company, Inc., the plaintiff, is a Missouri corporation engaged in general contracting work, while the defendant, Martin Tractor Company, Inc., is a Kansas corporation. The two parties will be referred to hereafter either as plaintiff, or Southwest, on the one hand and defendant, or Martin, on the other. We glean from the record that in April, 1966, the plaintiff was interested in submitting a bid to the United States Corps of Engineers for the construction of certain runway lighting facilities at McConnell Air Force Base at Wichita. However, before submitting a bid, and on April 11, 1966, the plaintiff’s construction superintendent, Mr. R. E. Cloepfil, called the manager of Martin’s engine department, Mr. Ken Hurt, who at the time was at Colby, asking for a price on a standby generator and accessory equipment. Mr. Hurt replied that he would phone him back from Topeka, which he did the next day, quoting a price of $18,500. This quotation was re-confirmed by Hurt over the phone on April 13. Southwest submitted its bid on April 14, 1966, using Hurt’s figure of $18,500 for the generating equipment, and its bid was accepted. On April 20, Southwest notified Martin that its bid had been accepted. Hurt and Cloepfil thereafter agreed over the phone to meet in Springfield on April 28. On that date Hurt flew to Springfield, where the two men conferred at the airfield restaurant for about an hour. Hurt took to the meeting a copy of the job specifications which the government had supplied Martin prior to the letting. At the Springfield meeting it developed that Martin had upped its price for the generator and accessory equipment from $18,500 to $21,500. Despite this change of position by Martin, concerning which Cloepfil was understandably amazed, the two men continued their conversation and, according to Cloepfil, they arrived at an agreement for the sale of a D353 generator and accessories for the sum of $21,500. In addition it was agreed that if the Corps of Engineers would accept a less expensive generator, a D343, the aggregate price to Southwest would be $15,000. The possibility of providing alternate equipment, the D343, was suggested by Mr. Hurt, apparently in an atempt to mollify Mr. Cloepfil when the latter learned that Martin had reneged on its price quotation of April 12. It later developed that the Corps of Engineers would not approve the cheaper generator and that Southwest eventually had to supply the more expensive D353 generator. At the conference, Mr. Hurt separately listed the component parts of each of the two generators on the top half of a sheet of paper and set out the price after each item. The prices were then totaled. On the bottom half of the sheet Hurt set down the accessories common to both generators and their cost. This handwritten memorandum, as it was referred to during the trial, noted a 10 per cent discount on the aggregate cost of each generator, while the accessories were listed at Martin’s cost. The price of the D353 was rounded off at $21,500 and the D343 at $15,000. The memorandum was handed to Cloepfil while the two men were still at the airport. We will refer to this memorandum further during the course of this opinion. On May 2, 1966, Cloepfil addressed a letter to the Martin Tractor Company, directing Martin to proceed with shop drawings and submittal documents for the McConnell lighting job and calling attention to the fact that applicable government regulations were required to be followed. Further reference to this communication will be made when necessary. Some three weeks thereafter, on May 24, 1966, Hurt wrote Cloepfil the following letter: “MARTIN TRACTOR COMPANY, INC. Topelca Chanute Concordia Colby CATERPILLAR* “P. O. Box 1698 Topeka, Kansas May 24, 1966 Mr. R. E. Cloepfil Southwest Engineering Co., Inc. P. O. Box 3314, Glenstone Station Springfield, Missouri 65804 Dear Sir: Due to restrictions placed on Caterpillar products, accessory suppliers, and other stipulations by the district governing agency, we cannot accept your letter to proceed dated May 2, 1966, and hereby withdraw all verbal quotations. Regretfully, /s/ Ken Hurt Ken Hurt, Manager Engine Division” On receipt of this unwelcome missive, Cloepfil telephoned Mr. Hurt who stated they had some work underway for the Corps of Engineers in both the Kansas City and Tulsa districts and did not want to take on any other work for the Corps at that time. Hurt assured Cloepfil he could buy the equipment from anybody at the price Martin could sell it for. Later investigation showed, however, that such was not the case. In August of 1966, Mr. Cloepfil and Mr. Anderson, the president of Southwest, traveled to Topeka in an effort to persuade Martin to fulfill its contract. Hurt met them at the company office where harsh words were bandied about. Tempers eventually cooled off and at the conclusion of the verbal melee, hands were shaken all around and Hurt went so far as to say that if Southwest still wanted to buy the equipment from them to submit another order and he would get it handled. On this promising note the protagonists parted. After returning to Springfield, Mr. Cloepfil, on September 6, wrote Mr. Hurt placing an order for a D353 generator (the expensive one) and asking that the order be given prompt attention, as their completion date was in early December. This communication was returned unopened. A final effort to communicate with Martin was attempted by Mr. Anderson when the unopened letter was returned. A phone call was placed for Mr. Martin, himself, and Mr. Anderson was informed by the girl on the switchboard that Martin was in Colorado Springs on a vacation. Anderson then placed a call to the motel where he was told Mr. Martin could be reached. Martin refused to talk on the call, on learning the caller’s name, and Anderson was told he would have to contact his office. Mr. Anderson then replaced his call to Topeka and reached either the company comptroller or the company treasurer who responded by cussing him and saying “Who in the hell do you think you are? We don’t have to sell you a damn thing.” Southwest eventually secured the generator equipment from Foley Tractor Co. of Wichita, a company which Mr. Hurt had one time suggested, at a price of $27,541. The present action was then filed, seeking damages of $6,041 for breach of the contract and $9,000 for loss resulting from the delay caused by the breach. The trial court awarded damages of $6,041 for the breach but rejected damages allegedly due to delay. The defendant, only, has appealed; there is no cross-appeal by plaintiff.- The basic disagreement centers on whether the meeting between Hurt and Cloepfil at Springfield resulted in an agreement which was enforceable under the provisions of the Uniform Commercial Code (sometimes referred to as the Code), which was enacted by the Kansas Legislature at its 1965 session. K. S. A. 84-2-201 (1), being part of the Code, provides: “Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.” Southwest takes the position that the memorandum prepared by Hurt at Springfield supplies the essential elements of a contract required by the foregoing statute, i. e., that it is (1) a writing signed by the party sought to be charged, (2) that it is for the sale of goods and (3) that quantity is shown. In addition, the reader will have noted that the memorandum sets forth the prices of the several items listed. It cannot be gainsaid that the Uniform Commercial Code has effected a somewhat radical change in the law relating to the formation of enforceable contracts as such has been expounded by this and other courts. In the Kansas Comment to 84-2-201, which closely parallels the Official UCC Comment, the following explanation is given: “Subsection (1) relaxes the interpretations of many courts in providing that the required writing need not contain all the material terms and that they need not be stated precisely. All that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction. Only three definite and invariable requirements as to the writing are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be ‘signed,’ a word which includes any authentication which identifies the party to be charged; and third, it must specify quantity. Terms relating to price, time, and place of payment or delivery, the general quality of goods, or any particular warranties may all be omitted.” From legal treatises, as well, we learn that the three invariable requirements of an enforceable written memorandum under 84-2-201 are that it evidence a sale of goods, that it be signed or authenticated and that it specify quantity. In Vernon’s Kansas Statutes Annotated, Uniform Commercial Code, Howe and Navin, the writers make this clear: “Under the Code the writing does not need to incorporate all the terms of the transaction, nor do the terms need to be stated precisely. The Code does require that the writing be broad enough to indicate a contract of sale between the parties; that the party against whom enforcement is sought, or his agent, must have signed the writing; and that the quantity dealt with must be stated. Any error concerning the quantity stated in the memorandum prevents enforcement of the agreement beyond the precise quantity stated.” (p. 116.) The defendant does not seriously question the interpretation accorded the statute by eminent scriveners and scholars, but maintains, nonetheless, that the writing in question does not measure up to the stature of a signed memorandum within the purview of the Code; that the instrument simply sets forth verbal quotations for future consideration in continuing negotiations. But on this point the trial court found there was an agreement reached between Hurt and Cloepfil at Springfield; that the formal ■ requirements of K. S. A. 84-2-201 were satisfied; and that the memorandum prepared by Hurt contains the three essentials of the statute in that it evidences a sale of goods, was authenticated by Hurt and specifies quantity. Beyond that, the court specifically found that Hurt had apparent authority to make the agreement; that both Southwest and Martin were “merchants” as defined in K. S. A. 84-2-104; that the agreement reached at Springfield included additional terms not noted in the writing: (1) Southwest was to install the equipment; (2) Martin was to' deliver the equipment to Wichita and (3) Martin was to assemble and supply submittal documents within three weeks; and that Martin’s letter of May 24, 1966, constituted an anticipatory breach of the contract. We believe the record supports all the above findings. With particular reference to the preparation and sufficiency of the written memorandum, the following evidence is pertinent: Mr. Cloepfil testified that he and Hurt sat down at a restaurant table and spread out the plans which Hurt had brought with him; that they went through the specifications item by item and Hurt wrote each item down, together with the price thereof; that while the specifications called for a D353 generator, Hurt thought the D343 model might be an acceptable substitute, so he gave prices on both of them and Southwest could take either one of the two which the Corps of Engineers would approve; that Hurt gave him (Cloepfil) the memorandum “as a record of what we had done, the agreement we had arrived at at our meeting in the restaurant at the airport.” We digress at this point to note Martins contention that the memorandum is not signed within the meaning of 84-2-201. The sole authentication appears in handprinted form at the top left-hand comer in these words: “Ken Hurt, Martin Tractor, Topeka, Caterpillar.” The court found this sufficient, and we believe correctly so. K. S. A. 84-1-201 (39) provides as follows: “ ‘Signed’ includes any symbol executed or adopted by a party with present intention to authenticate a writing.” The official U. C. C. Comment states in part: “The inclusion of authentication in the definition of ‘signed’ is to make clear that as the term is used in this Act a complete signature is not necessary. Authentication may be printed, stamped or written; ... It may be on any part of the document and in appropriate cases may be found in a billhead or letterhead. . . . The question always is whether the symbol was executed or adopted by the party with present intention to authenticate the writing.” Hurt admittedly prepared the memorandum and has not denied affixing his name thereto. We believe the authentication sufficiently complies with the statute. The evidence already cited would be ample to sustain the trial court’s finding that an agreement was reached between Hurt and Cloepfil in Springfield. However, Cloepfil’s testimony is not the only evidence in support of that finding. In a pretrial deposition, Mr. Hurt, himself, deposed that “we agreed on the section that I would be quoting on, and we come to some over-all general agreement on the major items.” At the trial Hurt testified he did not wish to change that statement in any way. Hurt further testified that in his opinion the thing which stood in the way of a firm deal was Martin’s terms of payment — that had Southwest agreed with those terms of payment, so far as he was concerned, he would have considered a firm deal was made. Mr. Hurt acknowledged while on the stand that he penned the memorandum and that as disclosed therein a 10 per cent discount was given Southwest on the price of either of the generators listed (depending on which was approved by the Corps of Engineers), and that the accessories common to both generators were to be net— that is, sold without profit. It is quite true, as the trial court found, that terms of payment were not agreed upon at the Springfield meeting. Hurt testified that as the memorandum was being made out, he said they wanted 10 per cent with the order, 50 per cent on delivery and the balance on acceptance, but he did not recall Cloepfil’s response. Cloepfil’s version was somewhat different. He stated that after the two had shaken hands in the lobby preparing to leave, Hurt said their terms usually were 20 per cent down and the balance on delivery; while he (Cloepfil) said the way they generally paid was 90 per cent on the tenth of the month following delivery and the balance on final acceptance. It is obvious the parties reached no agreement on this point. However, a failure on the part of Messrs. Hurt and Cloepfil to agree on terms of payment would not, of itself, defeat an otherwise valid agreement reached by them. K. S. A. 84-2-204(3) reads: “Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” The official U. C. C. Comment is enlightening: “Subsection (3) states the principle as to ‘open terms’ underlying later sections of the Article. If the parties intend to enter into a binding agreement, this subsection recognizes that agreement as valid in law, despite missing terms, if there is any reasonably certain basis for granting a remedy. The test is not certainty as to what the parties were to do nor as to the exact amount of damages due the plaintiff. Nor is the fact that one or more terms are left to be agreed upon enough of itself to defeat an otherwise adequate agreement. Rather, commercial standards on the point of ‘indefiniteness’ are intended fe> be applied, this Act making provision elsewhere for missing terms needed for performance, open price, remedies and the like. “The more terms the parties leave open, the less likely it is that they have intended to conclude a binding agreement, but their actions may be frequently conclusive on the matter despite the omissions.” The above Code provision and accompanying Comment were quoted in Pennsylvania Co. v. Wilmington Trust Co., 39 Del. Ch. 453, 166 A. 2d 726, where the court made this observation: “There appears to be no pertinent court authority interpreting this rather recent but controlling statute. In an article entitled ‘The Law of Sales In the Proposed Uniform Commercial Code,’ 63 Harv. Law Rev. 561, 576, Mr. Williston wanted to limit omissions to minor’ terms. He wanted ‘business honor’ to be the only compulsion where ‘important terms’ are left open. Nevertheless, his recommendation was rejected (see note on p. 561). This shows that those drafting the statute intended that the omission of even an important term does not prevent the finding under the statute that the parties intended to make a contract.” (pp. 731, 732.) So far as the present case is concerned, K. S. A. 84-2-310 supplies the omitted term. This statute provides in pertinent part: “Unless otherwise agreed “(a) payment is due at the time and place at which the buyer is to receive the goods even though the place of shipment is the place of delivery;” In our view, the language of the two Code provisions is clear and positive. Considered together, we take the two sections to mean that where parties have reached an enforceable agreement for the sale of goods, but omit therefrom the terms of payment, the law will imply, as part of the agreement, that payment is to be made at time of delivery. In this respect the law does not greatly differ from the rule this court laid down years ago. In Thompson v. Seek, 84 Kan. 674, 115 Pac. 397, the parties entered into a written agreement for the sale of corn at a stated price to be delivered at Thompson’s elevator. Terms of payment were not mentioned. Thompson was unable to pay cash on delivery but proposed to pay by check instead. Seek refused this tender and rescinded the contract, whereupon Thompson sued for breach of contract. The decision of the court is reflected in Syllabus 1: “A written contract for the purchase of corn to be delivered at the buyer’s elevator implies payment in cash, and upon offer to deliver, and refusal to pay except by check, at a time when banks are not honoring checks by paying cash, the buyer is not entitled to damages for failure to deliver.” We do not mean to infer that terms of payment are not of importance under many circumstances, or that parties may not condition an agreement on their being included. However, the facts before us hardly indicate that Hurt and Cloepfil considered the terms of payment to be significant, or of more than passing interest. Hurt testified that while he stated his terms he did not recall Cloepfil’s response, while Cloepfil stated that as the two were on the point of leaving, each stated their usual terms and that was as far as it went. The trial court found that only a brief and casual conversation ensued as to payment, and we think that is a valid summation of what took place. Moreover, it is worthy of note that Martin first mentioned the omission of the terms of payment, as justifying its breach, in a letter written by counsel on September 15, 1966, more than four months after the memorandum was prepared by Hurt. On prior occasions Martin attributed its cancellation of the Springfield understanding to other causes. In its May 24 letter, Martin ascribed its withdrawal of “all verbal quotations” to “restrictions placed on Caterpillar products, accessory suppliers, and other stipulations by the district governing agency.” In explaining the meaning of the letter to Cloepfil, Hurt said that Martin was doing work for the Corps of Engineers in the Kansas City and Tulsa districts and did not want to take on additional work with them at this time. The entire circumstances may well give rise to a suspicion that Martins present insistence that future negotiations were contemplated concerning terms of payment, is primarily an afterthought, for use as an escape hatch. Doubtless the trial court so considered the excuse in arriving at its findings. We are aware of Martins argument that Southwest’s letter o\| May 2, 1966, referring to the sale is evidence that no firm contract had been concluded. Granted that some of the language employed might be subject to that interpretation, the trial court found, on what we deem to be substantial, competent evidence, that an agreement of sale was concluded at Springfield. Under our invariable rule those findings are binding upon this court on appeal even though there may have been evidence to the contrary. (See cases in 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, §§ 507, 508.) The defendant points particularly to the following portion of the May 2 letter, as interjecting a new and unacceptable term in the agreement made at Springfield. “. . . We are not prepared to make a partial payment at the time of placing of this order. However, we will be able to include 100% of the engine-generator price in our first payment estimate after it is delivered, and only 10% will have to be withheld pending acceptance. Ordinarily this means that suppliers can expect payment of 90% within about thirty days after delivery.” It must be conceded that the terms of payment proposed in Southwest’s letter had not been agreed to by Martin. However, we view the proposal as irrelevant. Although terms of payment had not been mutually agreed upon, K. S. A. 84-2-310 supplied the missing terms, i. e., payment on delivery, which thus became part of the agreement already concluded. In legal effect the proposal was no more than one to change the terms of payment implied by law. Since Martin did not accept the change, the proposal had no effect, either as altering or terminating the agreement reached at Springfield. As the Michigan Court of Appeals said in American Parts v. Arbitration Assn., 8 Mich. App. 156, 154 N. W. 2d 5: “. . . Surely a party who has entered into an agreement cannot change that agreement by the simple expedient of sending a written ‘confirmation’ containing additional or different terms . . .” (p. 174.) Neither, may we add, will an extraneous proposal which materially alters the original agreement, be included unless agreed to by the other party. (Application of Doughboy Industries, Inc., 233 N. Y. S. 2d 488,17 A. D. 2d 216.) Substantial parts of the briefs filed by both parties are devoted to discussions of the meaning and effect of K. S. A. 84-2-207. This murky bit of prose, which the United States Court of Appeals, First Circuit, characterized in Roto-Lith, Ltd. v. F. P. Bartlett & Co., 297 F. 2d 497 (1962) as “not too happily drafted” has given rise to a good deal of litigation and has prompted a spate of learned articles from legal savants. Section (1) and (2) of this statute read: “(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. “(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: “(a) the offer expressly limits acceptance to the terms of the offer; “(b) they materially alter it; or “(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.” The discussions centering on this section of the Code are occasioned by findings of the trial court that Southwest’s letter of May 2 is both an “acceptance” and a “confirmation” within the purview thereof; that as either an “acceptance” or “confirmation” the letter stated additional terms which were different from those agreed upon and which constituted a material alteration of the agreement. In view of the court’s previous findings that a viable contract had already been concluded at Springfield, we deem these findings superfluous and extraneous. We do not propose to engage in an extended dissertation upon the purpose or meaning of 84-2-207. In our view the statute is not germane to the facts of this case; we think it designed for situations where an open offer is accepted by “an expression of acceptance” (we presume in writing) or where an oral agreement is later confirmed in writing. Neither situation is presented in the case now before us. The trial court found that an enforceable agreement, memorialized in writing, had been reached in Springfield. This finding implies both offer and acceptance, the two being merged into the resulting contract. When the letter of May 2, 1966, was written there was no outstanding offer to accept — conditionally or otherwise. Neither was there an oral agreement to confirm — the agreement having previously been memorialized in the written memorandum of April 28. As we read the authorities pointed out by counsel on both sides, as they have attempted to divine for us the sense of 84-2-207, none of them appear to fit the pattern of the present action. The cited cases involve either an outstanding offer, accepted by written instrument containing different or added terms, or an oral agreement later confirmed by a writing which states new or additional terms. In this connection, while we recognize that the term “confirmation” may be employed in a variety of meanings, we think it is used in 84-2-207 in the sense of “a written order or agreement that verifies or substantiates an agreement previously concluded orally.” (Webster’s Third New International Dictionary, Unabridged.) Neither confirmation nor acceptance by Southwest was needed on May 2 to breathe life into the agreement previously concluded at Springfield, for it was memorialized in writing at the time of making. In an article entitled “The Law of Sales Under the Uniform Commercial Code, 17 Rutgers Law Review 14, Professor Calvin W. Corman writes: “The Code Provision merely requires that the writing be sufficient to indicate that a contract for sale has been made between the parties.” (p. 20.) In our opinion the instant memorandum amply satisfies that requirement, affording a substantial basis for the belief that it rests on a real transaction. (See Harry Rubin & Sons, Inc. v. Con. P. Co. of Am., 396 Pa. 506, 512, 153 A. 2d 472.) We find no error in tihis case and the judgment of the trial court is affirmed.	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The opinion of the court was delivered by Harman, C.: This is an action for judicial review of a state corporation commission order denying an application to amend the basic proration order governing production of natural gas in the Kansas Hugoton gas field. The basic order, dated March 21, 1944, and thereafter amended on various occasions, allocates production of natural gas from wells in the field on the basis of computations made under that which is commonly known as an adjusted deliverability formula. Essentially, the amendment proposed by the applicant, Cities Service Oil Company (hereinafter called Cities or appellant) would substitute that which is called a reserve index formula. Cities, the owner and operator of gas leases in the Kansas Hugoton field, filed the application with, the commission February 8, 1965. Highly summarized, it alleged the field is now virtually fully developed and contains 3,955 wells on which accurate production and pressure records have been maintained; in recent years mechanical means have been employed in varying degrees in some wells to stimulate and increase deliverability with the result that under the present formula inequities have resulted in gas allowables; due to disproportionate deliverabilities resulting from stimulation, not all leases will be able ultimately to produce the approximate amount of gas underlying them in proportion with other developed leases in the field. It asked that the formula be amended so as to conform to the legislative mandate (K. S. A. Chap. 55, Art. 7). A prehearing conference of interested parties was held March 11, 1965, as a result of which the commission entered its order limiting the scope of the proceedings as follows: “3. The Commission finds, upon consideration of the motions and briefs filed herein and the statements of counsel appearing herein, that only such historic and technical evidence as is necessary to support or rebut any proposed proration formula should be admissible in this hearing. “4. The Commission further finds that any evidence pertaining to the determination of market demand, tolerance and shut-in provisions, cancellation of underages, well spacing, minimum allowables, and physical testing of the wells in the field are not properly within the scope of this hearing and should not be admitted into the record. “It is, Therefore, by the Commission Ordered: That the scope of the hearing on the application above referred to be and it is hereby limited as set out in Findings (3) and (4) of this order. “The Commission retains jurisdiction of the subject matter and the parties for the purpose of entering such further order or orders as from time to time it may deem proper.” No objection or complaint has ever been lodged against this order. Thereafter extensive hearings were had at which twenty-six oil and gas companies, who were producers and purchasers in the field, and the Southwest Kansas Royalty Owners Association appeared. The commission on October 4, 1967, issued its order denying the application. Cities then filed its petition for judicial review in the district court of Finney county. January 8, 1968, that court remanded the matter to the commission for more specific findings. January 19, 1968, the commission made further findings of facts and conclusions of law and again denied the application. March 8, 1968, Cities again filed its petition for judicial review in the Finney county district court. The appellees are the corporation commission and other producing companies in the field (named as such in the caption of this opinion) who have intervened adversely to appellants position and have remained in the litigation to this stage. Certain of the appellee producers maintain the commission’s order is not subject to judicial review because no appeal has been taken from any of the commission’s proration orders actually fixing allowables for the wells in the field and no such orders are before the court for review. They rely on certain language used by this court in Hayward v. State Corporation Comm., 151 Kan. 1008, 101 P. 2d 1041, and Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 386 P. 2d 266, cert. den., 379 U. S. 131, 13 L. ed. 2d 333, 85 S. Ct. 272. In Hayward the corporation commission appealed from a stay order in the nature of a temporary injunction granted by a district court in which that court prohibited the commission from enforcing the original basic gas proration order proposed for the Hugoton field. The basic order was designed to form the standard pursuant to which the commission would fix allowable production for individual wells. The district court granted the stay order on the theory enforcement of the basic proration order and subsequent acts to be performed by the commission pursuant thereto would result in irreparable injury to the plaintiff land and royalty owners. The court’s finding of irreparable injury was based upon estimates, presumptions and predictions of witnesses as to what the scheduled allowables to be fixed by the commission probably would be. This court merely held the stay order was prematurely and improvidently granted inasmuch as the commission alone had the statutory right and duty to promulgate the schedule of allowables, that this was a legislative function which had not been performed and, until performed, could not be stayed or enjoined. In Colorado Interstate the commission, in contemplation of a change in the method of determining market demand (the starting point in the process of fixing well allowables), instituted show cause proceedings directing purchasers of gas in the Hugoton field to furnish certain information considered relevant to that determination. Formerly the only factor considered was nominations of the purchasers, with the result a major purchaser could reduce its take and force reduction on every other purchaser in the field regardless of market demand requirements as a whole. Eased upon the new information the commission compiled a report and an order to become effective February 1, 1958. A district court reviewed the order and found it void. Upon appeal this court indicated the commission’s order was not subject to judicial review because it stated only formulae factors and policy to be followed in the future and future commission action was necessary before the order could have any effect. The factual difference between these two cases and the case at bar is readily apparent — in the cited cases there had been no experience and nothing had happened under the new proposals affecting anyone’s rights; speculation was largely tire basis for challenge — here the order sought to be amended has been in operation in establishing allowables over a considerable period of time and there is experience as to its effect. The rationale underlying that which was said in Hayward and Colorado Interstate makes any holding there inappropriate under our present factual situation. The commission’s denial order is subject to judicial review. The same appellees further contend appellant is not an aggrieved party within the meaning of K. S. A. 55-606 making judicial review of corporation commission actions available to “any person aggrieved”. The argument is the evidence of appellant’s operations under the old formula falls far short of showing overall injury to or discrimination against it, and further, that appellant is acting under the guise of public interest only to accomplish something for its sister company, Cities Service Gas Company, a pipeline purchaser in this and other fields. Be that as it may, we think this argument approaches begging the question, that is, it assumes as proved the very thing in issue. Allowables are established for individual wells. Appellant owns and operates separate leases, and is properly concerned with its own correlative rights and those of other interest owners to whom it may be accountable for drainage. We hold an owner and operator of gas leases is a proper party to have judicial review of an order denying an application to amend a basic proration order under which allowables for individual wells have been fixed, where allegedly the basic order fails to protect correlative rights in individual leases held or operated by such party. Proceeding to the merits, we point out Colorado Interstate contains a comprehensive description of the Kansas Hugoton field, its uniqueness, and a history of proration therein which may furnish the interested reader further background for the problem here considered. Prior to presenting the findings which are under attack we should briefly mention several matters shown by the evidence but not particularly elaborated in those findings. The adjusted deliverability formula essentially is based on a well’s ability to produce into a pipeline against a specific back pressure, adjusted for the well’s attributed acreage, each well being allocated an allowable in proportion to the total field allowables as its adjusted deliverability bears to the total adjusted deliverability of all wells. Each year the commission totals all shut-in wellhead pressures taken during that year and arrives at an average pressure for the field. Under the basic order 80% of this average wellhead pressure is the standard deliverability pressure, and each wellhead’s pressure is compared with and measured against this figure. No well is assigned an allowable unless its shut-in wellhead pressure exceeds the standard deliverability pressure. The reserve index formula proposed by appellant consists of a computation based on the five (later amended to seven or ten) most recent pressure points for each well, and the cumulative production history, extrapolated to 60 per cent of the Kansas-Oklahoma field average pressure existing at the time of each annual test. By this means, a projection is made of remaining recoverable gas which will be produced when the well’s pressure declines to 60 per cent of the average pressure. This computation is called the well’s reserve index. The sum of the reserve indexes of all wells is applied to determine a field allowable factor, which, when adjusted for allowable to minimum wells, is multiplied by the individual well’s reserve index to determine the well’s current allowable. In a common reservoir gas migrates from high to low pressure. A well’s pressure is directly responsive to its production rate. Fracturing is the injection at varying high rates and pressures of volumes of liquids containing a propping agent into the producing formations immediately adjacent to the well bore. The pressure causes fractures in the formation which the propping agent enters and keeps open after the liquid is withdrawn. Fracturing has the effect of increasing the permeability of the producing formation in the vicinity of the well bore, thereby substantially increasing the well’s deliverability. Wells in the field have been fractured, and in some instances refractured, in varying situations. The process has increased the field’s recoverable reserves. In the Kansas Hugoton field the thickness of the gas producing formations varies considerably, running from as much as 150 feet in the "fairway” to as little as twenty-five feet on the flanks of the field. The pay formations are not uniform as to porosity or permeability, resulting in different pressures, and, due to their size and proximity to the water zone, some cannot be safely or economically fractured at all and others cannot be subjected to high intensity fracturing. Water problems of poorer wells become increasingly severe as more gas is produced from them. Ten pipeline companies purchase the gas in the field and transport it to various parts of the United States under varying requirements. The commission’s findings and conclusions, the subject of this litigation, are as follows: "FINDINGS OF FACT” “1. Since the generally accepted discovery well was drilled in 1927, approximately one third of the estimated recoverable reserves (21 to 25 trillion cubic feet) had been produced as of January 1, 1965, at -which time there were 3,956 gas wells producing and connected in the field. “2. The Kansas portion of the Hugoton Field is presently being regulated under the provisions of the Basic Proration Order issued March 21, 1944, as amended. This basic order established allowables for wells on the basis of adjusted deliverability which is the ability of a well to produce against a specific back pressure adjusted for the well’s attributed acreage. “3. Recoverable reserves provide a better standard against which to measure the fairness of assigning allowables than does gas-in-place. This is particularly true around the edges of the field where water lessens the probability of producing a well to a zero abandonment pressure. “4. The pressure decline method is the best method for estimating recoverable reserves in the Kansas Hugoton Field. “5. In estimating recoverable reserves abandonment pressures will vary from well to well depending upon the circumstances. “6. Under the present Basic Proration Order, as amended, the pressure control factor has caused the pressure to decline relatively uniformly. The reserve index formulas cannot exercise as good control of pressures between wells because they have weaker control factors (40% and 60%) because there is no uniformity of permeability in the field. “7. Prior to 1965 no application had been filed to change the formula for the field. “8. Prior to the advent of the workover process known as fracturing, the allowables assigned the wells in the field were in reasonable relationship to each well’s recoverable reserves. “9. Only since 1962 has the fracturing of wells caused a change in the individual well allowables. Most of the wells which experienced large volume, high rate fracture treatment have had their deliverability and resulting allowables increased. ‘TO. Those wells which have not been fractured have had their deliver-ability and resulting allowables decreased during this period of time. “11. As of November, 1965, the Kansas Hugoton Field had accumulated underproduction of 331,636,135 MCF; Cities Service Gas Company had an accumulated underproduction of 298,239,396 MCF; there were 1,452 wells connected to the Cities Service Gas Company system; the accumulated underproduction charged to Northern, Panhandle, Colorado Interstate and Kansas Nebraska was 28,501,517 MCF. “12. Although the limit of the permitted flexibility of operation was six times the January basic allowable, the Cities Service Gas Company connections were 11.8 times January underproduced as of November, 1965. “13. Beginning January 1, 1964, the Commission has annually or semiannually granted a moratorium on the cancellation of underages. “14. The peak of the allowable displacement due to fracturing took place during 1964. Since that time deliverabilities, and their resulting allowables, have begun to adjust to the pre-1962 positions. “15. Large volume high rate fracturing has appreciably diminished. “16. Refracturing presents no immediate problem. “17. The field’s allowable imbalance is being corrected. “18. Although there are disadvantages of the fracturing process, including the high cost, the possibility of fracturing into water and the drilling of replacement wells, the basic purpose of fracturing is to provide the bore hole with the best communication with the producing reservoir. Fracturing in many cases is necessary to counteract well bore damage to permit a well the opportunity to recover or to retain its fair share of the field allowable. “19. Fracturing has increased the period of peak deliverability for several years and the field ultimate recovery has been substantially increased by permitting production at economic rates to a lower field abandonment pressure. “20. With the adoption of the proposed reserve index formula, a well in a poor competitive position compared to its neighbors has little or no means to protect itself by well stimulation. “21. If temporary derangement of allowable patterens results from fracturing, the present deliverability formula acts rapidly to equalize pressure. “22. The proposed reserve index formula with its weaker pressure control factors (40% or 60%) and the weighting of seven or ten pressure points in the determination of allowables, will require relatively long periods to correct any pressure difference existing in the field. “23. The current deliverability formula with a stronger 80% pressure control factor places full weight on the most recent pressure determination, and will act more rapidly to equalize well pressures throughout the field. “24. Under the deliverability formula, if withdrawals from a well are proportionately in excess of the recoverable reserves of that well, the next pressure survey will show a larger pressure drop than experienced by the rest of the field. This will result in a proportionately lower deliverability and will result in lower allowables for subsequent proration periods until again tested. “25. Conversely, reduced withdrawal by an individual well, if not in proportion to the recoverable reserves, will result in a subsequent higher pressure with a consequent higher deliverability and allowable for the subsequent proration periods. “26. With this pressure control, inequities and withdrawals are rapidly corrected to maintain equalized pressures, and the deliverability formula thus provides each individual well an opportunity to x'ecover its fair share of the field recoverable reserves. “CONCLUSIONS OF LAW” “1. Prior to 1962 the allowables assigned the individual wells in the Kansas Hugoton Field were in reasonable relationship to recoverable reserves. During this period of time the deliverability formula was properly protecting correlative rights and preventing waste as required by the Kansas statutes. It is only since 1962 that there have been displacement of individual well allowables. The extent of the allowable displacement is best evidenced by the various exhibits introduced in this hearing. Part of the allowable displacement was caused by the fracturing of the wells connected to Cities Service Gas Company pipeline system. The new higher allowables caused Cities Service Gas Company to under-produce them which in turn increased well pressures and brought still higher allowables. The peak of the allow able displacement took place in the years 1963 and 1964. Since that time individual well deliverability and allowables have begun to adjust to their pre-1962 position. If allowed to continue, the deliverability formula will correct inequities thereby giving each well the opportunity to ultimately produce the recoverable reserves underlying its attributed acreage and to currently produce proportionately with the other wells in the field without cognizable uncompensated drainage. “2. Well stimulation has been advantageous to the Kansas Hugoton Field. It has made commercial reserves from those which were non-commercial prior to fracturing. It has permitted the restoration of older wells which had declined to stripper stages thereby increasing their recoverable reserves and lowering their abandonment pressures. It has lengthened the period of the field’s peak deliverability by approximately 10 years. Well stimulation has permitted the clean-up and maintenance of deteriorating wells. It has afforded many operators the only opportunity to improve their competitive position in the field. Well stimulation should be encouraged rather than discouraged. Retention of the present deliverability formula will provide the economic incentive to properly maintain and improve wells. Adoption of the reserve index proposals would lessen this incentive because in determining allowables less effect is given to improved producing capabilities. Because well stimulation permits the recovery of gas which otherwise would be left in the ground and permits the operators of wells in unfavorable positions to improve their competitive positions, the deliverability formula protects correlative rights and prevents waste in accordance with the mandale of the Kansas statutes. “3. The deliverability formula has governed the allocation of gas allowables to the individual wells in the field more than the past 20 years. This experience permits all persons concerned to make reasonable projections upon which future plans can be made. The reserve index proposals have never been used to prorate gas. There is no experience from which to judge the merits of the proposal. Under the circumstances, we would not be justified in abandoning the adjusted deliverability formula which experience has shown has adequately protected correlative rights and prevented waste. “4. The reserve index allowable projections submitted by the proponents were not worked in accordance with their proposals. For this reason there is nothing in the record to indicate what would happen if the proposals were adopted. The applicant has not sustained its burden of proving that the proposed reserve index formula would adequately protect correlative rights and prevent waste as required by the Kansas statutes. “5. Reserve index allowables are determined by use of pressure decline curves for individual wells. Many pressure decline curves require objective review of performance data and judgment in extrapolating the line-indicating slope. Such review and exercise of judgment should be performed by experienced personnel only. The IBM machines which make the calculations for the reserve index proposals cannot make the objective reviews and judgment interpretations required for determining allowables [sic] will lead to the violation of correlative rights and the adoption of the proposed reserve index formula would be unlawful. “6. The deliverability formula gives full weight to current pressure measurement. This fact plus its 0.8 pressure control factor causes it to adjust rapidly to correct inequities and protect correlative rights. The reserve index proposals would less.en the effect of current pressures by use of 7 or 10 pressure points. The pressure correction factors as proposed (0.6 and 0.4) would equalize pressure differences between offsetting wells more slowly. In a large field with many purchasers, the adjusted characteristics are very necessary for the protection of correlative rights and prevention of waste. The retention of the adjusted deliverability formula will permit the Commission to carry out its statutory obligations in this respect. “7. Through the minimum allowable provision, the present basic proration order has assured all wells of an allowable large enough to permit economic operation. The adjusted deliverability formula gives all the other wells the opportunity to ultimately recover the reserves underlying their attributed acreage and to currently produce proportionately with the other wells in the field without cognizable uncompensated drainage over any reasonable period of time. The reserve index proposals would not afford the wells in the field such an opportunity. “8. The application to change the proration formula for the Kansas Hugoton Field should be denied. The district court’s order upon review, made orally from the bench, was: “Let the record show that at the conclusion of all the arguments of counsel the Court is ready to decide the matter. It is the decision of the Court, within the limited jurisdiction the Court has in this matter, that here is evidence to sustain the action of the Commission and the Court makes a general finding that their action is supported by evidence and that their conclusions drawn from the evidence are legal, and their acts are not arbitrary, capricious or illegal. Therefore, the Commissions order will be sustained, but, while this Court does not have power to order this case remanded and there is evidence to sustain the Commission’s order, I think the Court perhaps is in a position to criticize that order. “It seems rather clear to me from this evidence that the deliverability formula when faced with the stress of fracturing and refracturing, together with the complications that arise from overages and underages in the taking of gas, is not working properly to carry out the mandates of the statute. I think that the Commission’s own findings indicate that there is inequity in the field, that gas is being taken for which there is no just recompense to the persons who are suffering from the drainage involved. It would be the Court’s recommendation, but not an order, that the Commission, through its own staff, should investigate as to whether or not this deliverability formula should be revised and altered. Now in the proceedings in front of the Commission the Commission never got a fair shot at this point because all it was that was in front of the Commission was the desirability on one side of reserve index formula and of the present formula, and everybody spent a lot of time, a lot of money, and had experts figuring out how they would be affected. The record is practically devoid of impartial testimony as to what was the fair way to do it. All the experts testified what helped their company, and I mean the Commission didn’t have a fair set of expert testimony in front of it as to what would be a fair order and what is the correct order. All they had was comparison of one system against another, and for what its worth, since I cannot substitute my judgment for that of the Commission, I am affirming their order, but I am suggesting to them they should re-examine the matter upon their own.” Appellees make much of the prehearing conference order, limiting the hearing to evidence necessary to support or rebut any proposed proration formula. They argue the hearing was not a general investigation into the advisability of revising the deliverability formula but was only to determine if appellant’s proposed reserve index formula should be adopted. They make this argument in response to appellant’s present position that the whole proceeding should be remanded to the commission with instructions to adopt a formula more nearly in compliance with the mandate of K. S. A. 55-703. The hearing may have become broader than prescribed in the prehearing order. Comparison between the two formulas was inevitable. Rejection of the one proposed left the other standing, although we know of no reason why the commission, after full hearing, could not have made changes it considered warranted. We are not inclined to quibble over the approach taken. Upon review the basic question remains, was the commission’s order lawful and reasonable? Appellant presents twelve specifications of error directed at the action taken both by the commission and the trial court. Some are based directly upon the findings and conclusions made by the commission and sustained by the trial court, and the remainder stem from the trial court’s remarks made after it sustained the commission’s order. The first group of alleged errors is embraced in a determination of the question whether the commission’s order was lawful and reasonable, that being the scope of judicial review (Colorado Interstate Gas Co. v. State Corporation Comm., supra). The corporation commission is charged with the duty of regulating the production and conservation of natural gas within the state under certain conditions (K. S. A. Chap. 55, Art. 7). K. S. A. 55-703 prescribes part of that duty: “. . . any person, firm or corporation having the right to produce natural gas therefrom, may produce only such portion of all the natural gas that may be currently produced without waste and to satisfy the market demands, as will permit each developed lease to ultimately produce approxi mately the amount of gas underlying such developed lease and currently produce proportionately with other developed leases in said common source of supply without uncompensated cognizable drainage between separately-owned, developed leases or parts thereof. “The commission shall so regulate the taking of natural gas from any and all such common sources of supply within this state as to prevent the inequitable or unfair taking from such common source of supply by any person, firm or corporation and to prevent unreasonable discrimination in favor of any one common source of supply as against another and in favor of or against any producer in any such common source of supply. In promulgating rules, regulations and formulas, to attain such results the commission shall give equitable consideration to acreage, pressure, open flow, porosity, permeability and thickness of pay, and such other factors, conditions and circumstances as may exist in the common source of supply under consideration at the time, as may be pertinent. . . .” In Colorado Interstate we said: “The Commission has three responsibilities under the Gas Conservation Statute. It must first of all prevent waste of the natural resource. It must allow sufficient production to meet the market demand if such can be done without waste. It must protect correlative rights. “In a gas field such as the Kansas-Hugoton where five major companies are taking gas through separate pipelines not connected to the same wells, the responsibilities placed upon the Commission will clash. If the market demand cannot be supplied without waste, or if correlative rights cannot be protected without waste, or if correlative rights cannot be protected without unduly restricting production needed for the market demand, one of the three, waste, market demand, or correlative rights, must suffer. The dominant purpose of the Gas Conservation Statute is to prevent waste. (Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 222 P. 2d 704.) “The Commission cannot require or guarantee that each well owner will produce and sell his entire allowable. The Commission is required to afford each owner the right or opportunity’ to produce his share. As far as the Commission’s duty under the basic order goes, it is fulfilled when each owner is legally ‘free to produce’ and not denied the ‘right or opportunity’ to produce his allowable. “The Commission could not be required to shut in an entire gas field to protect correlative rights where some of the producers desired to cease production and hold a gas field for a reserve. The Commission could not be required to unduly restrict production in a gas field because some producers desired to deplete the gas at a very low rate regardless of the reason. “When waste, market demand, and correlative rights are in conflict the Commission must determine which is to be given preference. If the decision of the Commission is supported by evidence, the courts cannot interfere.” (pp. 24-25.) Thus the question is whether the trial court properly determined there was evidence to support the commissions order. The trial court had before it a 1,700 page transcript of the proceedings before the commission. Included were the testimony of fifteen expert witnesses and numerous exhibits. Abstracted for us, the record containing the evidence is proportionately voluminous. Some of the evidence is conflicting and subject to different interpretation because of its highly technical nature. We will discuss it only briefly. Apparently the advent of heavy fracturing in the field precipitated the dispute. The process commenced in the middle 1950’s. Appellant argues a fracturing race eventually developed among the various producers, which was unnecessary, costly and uneconomical. By the end of 1964 there were 1,811 fractured wells, of which 1,569 were fractured during 1962, 1963 and 1964. Appellant contends the emphasis placed on deliverability in the present formula has contributed to this situation, resulting in an imbalance in the field with uncompensated drainage. The record contains much testimony as to the different situations in which fracturing has occurred, e. g., to repair well bore damage, to regain position in older wells to compete with newer wells drilled under modern techniques permitting more efficient primary recovery, fracturing with different rates of materials and pressures used, and some refracturing. Apparently the peak has been reached. The subject was fully explored in the hearings and we think the commissions findings dealt with it fairly. The commission can do nothing to change the natural excellence of any particular tract in the field; it can only provide each a fair opportunity to produce its share. The differences in the two formulas under consideration were obvious. Among others, that of the commission emphasized the individual wells ability to produce, and recoverable reserves; appellant’s emphasized gas in the ground, which might not be recoverable inasmuch as its reserve estimate was projected down to zero pounds pressure. The former used stronger pressure controls (80%) to correct imbalance than did the latter (either 40 or 60%). Appellant’s formula would also be less quickly responsive to pressure changes because based on either the last five, seven or even ten pressure tests on the well, instead of the most recent. The importance of this is seen in the fact that whenever a well produces a greater share of its recoverable reserves than its neighbors, its pressure will decline more sharply than does the field average; whenever a well’s pressure declines more than the field average, its subsequent deliverability and allowable will be correspondingly reduced. Three of the producers who appeared at the hearing supported appellant’s proposed formula. One gave its approval with some modification based upon the studies made by appellant, one approved but wanted substantial changes (for example, 40% control factor), and one apparently approved without reservation. Concededly, considering the complexities involved, no formula is perfect, and none is capable of keeping the field in exact balance as some drainage constantly occurs. The high pressure control feature of the commission’s formula is designed to act rapidly to minimize pressure differences and prevent ultimate cognizable, uncompensated drainage. Lower allowables would, of course, result under appellant’s formula. Several of the briefs filed by appellees point out numerous serious deficiencies in it, particularly as compared with the present one. Not all these flaws are mentioned in the commission’s evidentiary findings; however, they are in the evidence and lend support to the commission’s ultimate findings and conclusions. The commission did point out that as of November, 1965, the field’s major pipeline company, Cities Service Gas Company, had huge accumulated underproduction as compared to all other companies (finding No. 11). This finding recognizes that problems of drainage are contributed to when a maj'or purchaser fails to use the field adequately as a source of supply. Problems caused by such underages are best and most quickly solved by the deliverability formula, and the formula appears in fact to be working rapidly to minimize any imbalance created. The record contains evidence the deliverability formula was not the cause of any current problems in the field. If appellant’s problems are caused by the fracturing in the field, the record contains evidence the proposed reserve index formula would not alleviate the condition. In all its arguments appellant has stressed that the present formula has failed to allow its wells to “currently produce proportionately with other developed leases in said common source of supply” (K. S. A. 55-703) but it fails to include the qualification which follows in the statute, i. e., “without uncompensated cognizable drainage between separately-owned, developed leases or parts thereof. . . .” As indicated, drainage is inevitable in an active field such as the Hugoton. The deliverability formula contemplates counter drainage and thus provides compensated drainage in a subsequent period of time, recognizing the impossibility of applying the literal meaning of the word currently. The formula does appear to provide each individual well fair opportunity to recover its share of the field recoverable reserves. We understand that, under the basic order, at the request of industry, nonfractured wells are tested only in alternate years and fractured wells but once a year for three years immediately after the fracture. More frequent testing would, of course, result in more rapid equalization, but this would be accompanied by greater hardship because of the longer shut-in. In any event, the testing provisions of the basic order were never an issue in the proceeding. In Colorado Interstate we recognized the commission is required to afford each owner the fair opportunity to produce his share. In it we also said: “It may be stated as a general proposition of law that the determination of market demand and establishing allowables is a responsibility which the legislature has lodged in the Commission. The courts are without jurisdiction to determine the method the Commission should use or the factors which it should consider. The courts may examine the methods used for the purpose of determining whether the Commission has acted within the power and authority delegated to it by the legislature. “In considering the validity of the Commission’s determination, the courts can consider only the statutes granting the Commission’s authority and the Commission’s basic order with such amendments as are properly made thereto. The determination is a question of fact. What facts are to be considered and the relative weight to be accorded them are matters left to the Commission’s discretion. Unless the determination is arbitrarily or capriciously made without supporting evidence, the courts cannot interfere and substitute their judgment for that of the Commission. The question for the reviewing court is the power of the Commission to make the order, not its wisdom, propriety or expediency in having made it.” (p. 18.) The commissions order is substantially supported by evidence. The commission has taken into account the various factors it is required to consider under 55-703 and we think its order represents a reasonable and practical effort to handle a difficult problem in compliance with the legislative mandate. Appellant vigorously asserts the trial court misconceived its function and that it sustained the commission’s order principally on the ground of lack of jurisdiction to do otherwise. Appellant contends the court should have remanded the matter to the commission for further proceedings in the light of that which the court had to say. We cannot agree. We think the trial court clearly recognized, and acted within, the proper scope of its review. Once the trial court sustained the commission s order, it had no power to remand the proceeding, and correctly so stated. Having said this, it made that which it termed recommendations, but specifically not an order. The court was primarily concerned with the partiality of the witnesses before the commission, of which the commission was doubtless cognizant, and hopefully opted for something better. Moreover, the prehearing order, good or bad, limited the scope of the hearing to evidence on a proposed formula, that order was never challenged, and the scope of the proceeding could not in any event be expanded. If the trial court’s informal remarks could be construed to indicate unreasonable or unlawful action on the part of the commission its express formal holding was to the contrary and must control. In reaching our conclusion of affirmance we have not overlooked the many contentions industriously and capably advanced by appellant. The judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Fromme, J.: James R. Prescher appeals from an order denying relief under K. S. A. 60-1507. In 1963 he was convicted of murder in the second degree and sentenced to not less than ten nor more than twenty-five years in the penitentiary. The journal entry recited: “It Is Therefore, by the Court, Considered, Ordered, Adjudged and Decreed That the Defendant, James Prescher, be and he is hereby found guilty of murder in the second degree, in violation of G. S. 1949, 21-402, and it is the sentence of this Court that the Defendant, James Prescher, be confined at the Kansas State Penitentiary at Lansing, Kansas, at hard labor, for a period of time of not less than ten years nor more than twenty-five years, as provided by G. S. 1949, 21-403, until discharged in compliance with law; that the Defendant pay the costs of this action in the sum of $__” On October 3, 1968, Mr. Prescher filed a motion under K. S. A. 60-1507 in the sentencing court. He alleged the following grounds for relief: . . (a) Petitioner has served the legal penalty of (10) years assessed by the sentencing court. “(b) Petitioner states that the courts additional sentence of (to 25 years) is illegal and not in courts jurisdiction under K. S. A. 21-402, 403.” His motion recited he relied upon the trial court’s journal entry and upon K. S. A. 21-402, 403 to prove his grounds for relief. Prescher was returned to the sentencing court and appeared with court appointed attorney on November 8, 1968. During the hearing on this motion the county attorney called the court’s attention to that portion of K. S. A. 21-403 which reads: . . Those convicted of murder in the second degree shall be punished by confinement and hard labor for not less than ten years.” The county attorney further pointed out the provisions of K. S. A. 21-109 which supplements the foregoing statute. It reads: “Whenever any offender is declared by law punishable, upon conviction, by confinement and hard labor for a term not less than any specified number of years, and no limit to the duration of such imprisonment or confinement is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed; but no person shall in any case be sentenced to confinement and hard labor for any term less than one year.” On application a nunc pro tunc order was entered by the district court correcting the original journal entry to read as follows: “It Is Therefore, by the Court, Considered, Ordered, Adjudged and Decreed That the Defendant, James Prescher, be and he is hereby found guilty of murder in the second degree, in violation of G. S. 1949, 21-402, and it is the sentence of this Court that the Defendant, James Prescher, be confined at the Kansas State Penitentiary at Lansing, Kansas, at hard labor, for a period of time of not less than ten years nor more than twenty-five years, as provided by G. S. 1949, 21-403 and G. S. 1949, 21-109, until discharged in compliance with law; that the Defendant pay the costs of this action in the sum of We note that the Honorable Walter E. Hembrow who presided at the original trial of Mr. Prescher entered the order nunc pro tunc correcting the record. All relief prayed for by the petitioner, Prescher, in his 1507 motion was denied and on December 13,1968, the district court filed written findings of fact and conclusions of law supporting its decision. The appellant’s abstract of record on appeal which includes portions of the court reporter’s transcript was filed and docketed in this court on December 22, 1969. The brief of appellant was filed April 20, 1970. On May 18, 1970, appellee’s brief was filed. The case was set on the next docket and argued June 8, 1970. The decision of the district court denying relief and correcting the original journal entry nunc pro tunc is fully supported by the prior decisions of this court and must be affirmed. In Craven v. Hudspeth, 172 Kan. 731, 242 P. 2d 823, this court held: “The failure to include in a journal entry showing conviction in a criminal action the statute under which sentence was rendered, where no complaint is made that the sentence was not one provided for by statute, is a formal defect which may be corrected by a nunc pro tunc order, and such failure does not entitle the convicted defendant to release by writ of habeas corpus.” (Syl. f 2.) This holding was approved in Dunn v. Crouse, 192 Kan. 180, Syl. ¶ 3, 386 P. 2d 228, and in Ray v. State, 202 Kan. 144, 146, 446 P. 2d 762. In State v. Akins, 194 Kan. 514, 399 P. 2d 848, it was specifically held: “The provisions of K. S. A. 21-403 and 21-109 are examined, and it is held: In imposing the penalty for those convicted of murder in the second degree, the statutes are to be construed together, and the trial court may order any sentence to be imposed not less than the minimum prescribed.” (Syl. f 1.) The original sentence by the trial court was not less than ten years, as provided in K. S. A. 21-403 and not more than twenty-five years as authorized by K. S. A. 21-109. These statutes are to be construed together in the imposition of sentence. The omission of K. S. A. 21-109 from the journal entry was a formal defect and was properly cured by the nunc pro tunc proceedings. In addition the appellant contends that he has-served the legal penalty of ten years as originally assessed by the sentencing court and that he should be released from custody. He was sentenced on January 21, 1963. It is apparent that this contention cannot be true literally. However, he states the Kansas Board of Probation and Parole by regulation has set up a system for paroles which allows for good time and incentive credits. These may permit an inmate sentenced to ten years to be released by the board after serving five years and six months. Assuming that this may be true, the provisions of K. S. A. 60-1507 do not provide a method for inquiring into the propriety of the acts of the Kansas Board of Probation and Parole. In Johnson v. Stacker, 203 Kan. 253, 453 P. 2d 35, a parole from confinement in a penal institution prior to serving all of an imposed sentence was determined to be a privilege, a matter of grace. No constitutional right is involved in determining whether such a parole should be granted. In Foor v. State, 196 Kan. 618, 413 P. 2d 719, this court said: “The provisions of K. S. A. 60-1507 do not provide a method of inquiry into the propriety of the acts of the Kansas Board of Probation and Parole. The provisions are available only for the purpose of inquiring into the propriety of a judgment or sentence. . . . “Proceedings and acts of the board which occur subsequent to the original sentence can have no effect upon the validity of the sentence.” (p. 620.) Accordingly the judgment of the district court is affirmed.	[ -16, -22, -35, 95, 11, 96, 58, 24, 98, -13, 36, 115, -23, -33, 5, 57, 59, 5, 20, 121, -29, -74, 119, 65, 22, -5, -55, -43, -79, 95, -76, -76, 72, 64, 10, 85, -90, -64, 25, 30, -114, 7, -120, -15, 80, 8, 52, 111, 26, 14, 49, 30, -21, 10, 28, -30, -87, 44, 91, -83, -120, -79, -117, -113, 123, 20, -94, -128, -100, 3, 80, -65, -102, 57, 0, -24, 81, -106, -122, -12, 103, -71, -84, 98, 98, 33, 21, -50, 104, -39, 14, -41, -115, -89, 25, 88, 67, 44, -98, -99, 118, 84, 0, 126, -28, 52, 85, 124, -117, -118, -76, -109, -51, 125, -122, -102, -5, -91, 32, 113, -50, -94, 92, -25, 121, 23, -85, -80 ]
The opinion of the court was delivered by Harman, C.: This is an action for damages against a city for alleged maintenance of a nuisance created by flow of water in a drainage ditch adjoining plaintiffs’ property. Trial to the court resulted in a judgment for plaintiffs from which the city has appealed. The evidence developed at trial, about which there is no dispute, revealed the following: In 1962 plaintiffs purchased the property in question, a house and lot at 7312 Beverly street, Overland Park, Kansas, which they have since occupied as their home. The house was constructed in 1954. Along the north side of the property a rock and mortar retaining wall had been built. The wall was 120 feet long, eighteen inches wide, and six or seven feet high at one end and four feet high on the other, with a chain link fence installed on top. The wall had no footings and contained no apertures in its face through which ground water could escape. It was located entirely on plaintiffs’ land and was in good shape when plaintiffs bought the property. Parallel and adjacent to the wall the city has a drainage and utility easement ten feet wide. This easement was one platted by the developers of the land prior to its incorporation within the city. Located on the easement is a drainage ditch ten to twelve feet wide and five to seven feet deep. The ditch has a flat, rocky bottom and drains a residential area of approximately twenty blocks generally south of 69th street and east of Metcalf avenue. This area was developed prior to 1962, with the exception of 73d Street Terrace which has had homes constructed since that time. New sidewalks were built. About a dozen cul-de-sacs in the area drain into the ditch. The city did not construct the ditch, has done nothing to improve it and has never maintained it but has on occasion removed trash from it when requested to do1 so. At times during and after rains the rapidly moving water in the ditch has carried along with it much debris. The drainage water has been increasing in volume and intensity. In 1961 a petition was circulated in the area asking creation of a water benefit district. In 1965 the city adopted standards and specifications for construction of storm drainage systems but the city has none within its corporate limits. In the area drained by the ditch along plaintiffs’ property there are a few short storm sewers and some cement conduits draining water under and from the streets into the ditch. Much of the area is impervious to natural water seepage into the ground because of driveways, rooftops and streets. There has been continuous erosion in the ditch since 1958, particularly in the area between Lamar and Nall Avenues. In the fall of 1965 about six feet of plaintiffs’ wall fell in. They notified the city engineer and were informed the city had no funds for maintaining water drainage ditches. In May of 1966 plaintiffs repaired the wall, this being about two weeks before the damage in question. On June 12,1966, there was a heavy, although not unprecedented, rainfall in the area. Approximately eighty feet of plaintiffs’ wall fell in and water came into the basement of their home to a depth of over two feet, causing the basement wall and floor to crack and damaging items of personal property in the basement. Eefore the retaining wall fell in there had been vertical eroding of the soil under it of about five or six inches. On July 20, 1966, plaintiffs filed with the city notice of their damage as required by K. S. A. 12-105, and later instituted this suit when their claim was not paid. As indicated, plaintiffs prevailed, the trial court making findings of fact reciting the evidence generally in accord with that stated. Its essential findings upon which liability is predicated were as follows: “4. During the time since plaintiffs moved into their home the drainage ditch and flow of surface water therein and the over flowing of the water from the ditch and easement have caused the plaintiffs and other residents of the area great annoyance. On numerous occasions, after rains, the water would be 5 to 7 feet in the ditch, and would overflow on adjoining properties. The water flow would be with such high speed and great force that it would carry railroad ties, large rocks weighing from 50 to 75 pounds, logs, trees, lumber, children’s wagons and play equipment, sewage and other debris downstream and deposit them along the ditch. It caused serious erosion up stream, down stream, and opposite plaintiffs’ property, and eroded out deep water holes, in the easement, in which water would stand and become stagnant, and in which mosquitoes would breed. The defendant once sprayed to kill the mosquitoes in the area near plaintiffs’ home. There was frequently an odor from the ditch. The ditch was a hazard to plaintiffs’ children and other children living in the area. “5. Over a period of years the defendant has greatly increased the amount of run off water in the ditch on its easement by the construction of new streets, draining streets into the ditch, and construction of artificial water courses which carried surface water from streets and numerous cul de sacs into the ditch. Many new homes with drive ways which are impervious to natural water seepage into the ground have been erected in the area within a few blocks of plaintiffs’ home. The entire surrounding area is now largely developed into a residential district with many areas such as roofs, and drive ways causing an additional flow of surface water into the ditch and easement.” Based upon the foregoing the court concluded: “1. The above described storm water ditch on defendant’s easement, and the above referred to conditions created thereby constituted a nuisance, for which defendant is liable, as defined and explained in Jeakins v. The City of El Dorado, 143 Kansas 206 and other more recent supreme court decisions. That defendant created and maintained said nuisance.” Upon appeal the city makes several contentions, among them that it had not created or maintained a nuisance for which it is liable. For affirmance plaintiffs rely principally upon four of our cases. The first is Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798. The petition for damages alleged the city operated a sewage disposal plant, dumping treated sewage into the Walnut River; during drouth periods the river became so low the volume of water was insufficient to carry away the waste material so that its stench became offensive to plaintiffs’ residence near the river. After pointing out that although cities are authorized by statute to erect and maintain sewers and sewage disposal plants, this court held they are not warranted in operating them as to constitute a public nuisance, and if they do so operate, they become liable in damages to persons injured, it being no defense that such erection and maintenance are in the exercise of a governmental function. The court ruled the petition sufficiently alleged a nuisance, saying: “Nuisance means annoyance, and any use of property by its owner which gives offense to or endangers life or health, violates the laws of decency, or obstructs the reasonable and comfortable use of property of another, may be said to be a nuisance.” (Syl. f 2.) Plaintiffs next cite Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P. 2d 227. In this action the city, at a time of emergency when flood waters from the Arkansas River threatened, allegedly constructed a dike more than five miles beyond the city limits in order to protect the city with the result water was diverted from its natural course and thrown against the land of plaintiffs to then-damage. At that time a city had statutory authority to erect such a dike only within a distance of five miles from the city. In reversing the trial court’s order sustaining a demurrer to plaintiffs’ petition this court quoted approvingly from 38 Am. Jur., Municipal Corporations, § 645, p. 352 as follows: “On the other hand, the universal rule that one person cannot change the course of drainage and cast upon the land of another water which naturally would not have flowed there applies equally to municipal corporations, so that a municipal corporation incurs the same liability as an individual when it damages the land of another person by casting thereon water which would not have flowed there naturally, either by changing the course of drainage, by causing surface water to accumulate and flow on to the land of another person in greater quantities than would naturally have flowed there, or by collecting surface water into artificial channels in such quantities that it overflows onto adjoining property.” (pp. 457-458.) Plaintiffs also cite Morris v. City of Kansas City, 189 Kan. 52, 366 P. 2d 788, a nuisance action based upon flooding of a residence property. Plaintiff’s property was located in an area annexed by the city, his home being near a street which had been built across a drainage ditch or ravine. A culvert was installed under the street to carry the water in the ditch but, prior to the flooding in question, complaint had been made to the city and the city had determined the culvert was only half large enough to drain surface water adequately in time of heavy rainfall. In describing the condition this court commented that “the city was maintaining what amounted to a dam, formed by the city street, on a natural drain.” (p. 55.) Plaintiff’s property was flooded and he alleged nuisance and recovered judgment against the city. The culvert had been installed in the street prior to annexation of the area by the city and the principal issue upon appeal was stated to be “whether the city can be liable when it is apparent that it did not create the nuisance but merely maintained it and had knowledge of its existence.” (p. 52.) This court, after ruling a nuisance existed, stressed the fact the city after annexation of the area had been maintaining the street and the culvert and held the city liable for the maintenance of a nuisance of which it had notice even though it had not created the nuisance. Finally, plaintiffs rely on Spacek v. City of Topeka, 189 Kan. 645, 371 P. 2d 165, an action against a city for alleged maintenance of a nuisance by the discharge of surface water from its paved streets and storm sewers into a natural waterway which flowed through plaintiff’s land. The evidence showed that by reason of the paving in the area water flowed against the property with greater force and erosive power. A demurrer to plaintiff’s evidence was sustained because he showed no injury to his property during the three months’ period immediately preceding the date he filed his statutory notice of claim against the city and this court affirmed. We are unable to find in the case any comfort to plaintiffs here. After the case at bar was heard in the trial court this court decided Cherry v. Board of County Commissioners, 202 Kan. 121, 446 P. 2d 734, in which recovery for personal injury to a four year old boy was sought for the county’s maintenance of a nuisance upon land owned by it. Plaintiff contended his evidence showed a classic case of nuisance in that the land was infested with insects, rodents, contained an abandoned well, debris, trash and glass and could well be characterized as an “eyesore” to the community. However, the injury derived from a fall upon a piece of glass and not from any other offensive condition of the premises, and absent causal connection, it was held these other conditions could not be made the basis for actionable nuisance. To be actionable, the nuisance complained of must be the proximate cause of the injury and damage for which recovery is sought. Mention is made of this ruling only for clarification in focusing attention on the private nuisance in the case at bar — water damaging plaintiffs’ property on June 12, 1966— not debris, mosquitoes, stagnant water or odor. Plaintiffs contend, and the trial court found in its finding No1. 5 already quoted, that the city increased the volume and rate of flow of water coming against plaintiffs’ property in time of heavy rainfall. Plaintiffs concede their recovery must be on this basis. As indicated, we have no precedent on a city’s liability under the present facts. In the Krantz case the city built the dike which diverted water from its natural course onto the complainant’s land. In the Morris case the city maintained an inadequate culvert in one of its streets which amounted to a dam. In each instance the city took some affirmative action in directing water where it would not otherwise have gone. The need for drainage of surface water is at best a perplexing and costly problem in a growing urban area. Cities are, of course, authorized to establish the grade of streets and to pave, curb and gutter them. K. S. A. 13-428 authorizes a city of the first class, “To alter and change the channels of streams and watercourses; to build and erect walls, levees and ripraps to protect or straighten banks of streams, and pay for the same out of the general-improvement fund. . . .” Under K. S. A. 13-1055, et seq., (and amendments) such cities are authorized to construct at general city expense certain types of storm sewer systems, and they have long had authority to create special benefit drainage districts. However, authority to act is not alone the legal equivalent of a command to act and we are not aware of any legislative mandate to a city, or other duty resting upon it, to provide drainage. Hence it follows that ordinarily a city’s failure to protect citizens from surface water is not actionable (see 18 McQuillin, Municipal Corporations, 3d ed. rev., § 53.140, p. 526; 38 Am. Jur., Municipal Corporations, § 645; anno. 173 ALR 1033). What then is a city’s responsibility with respect to surface waters? In 63 C. J. S., Municipal Corporations, § 883, the following appears: “Surface Water, a. In General “In the control and disposition of surface waters, municipal corporations ordinarily have the same rights and are subject to the same liabilities as private persons. In the absence of statute or charter providing otherwise, they are under no obligation to prevent the natural flow of surface waters or to protect private property from damage therefrom, and they are not liable for any damage caused thereby, [p. 275.] “b. Obstructing, Diverting, or Increasing Flow. “As a general rule a municipal corporation is not liable for damage caused by the increased or accelerated flow of surface waters which have not been diverted from their natural course, or by the incidental change or interruption in, the discharge of, or the increased or accelerated flow of, surface waters caused by the lawful improvement of its streets or the making of other public improvements.” (p.277.) In 18 McQuillin, Municipal Corporations, 3d ed. rev., § 53.141, we find this: “A fortiori, a municipality is not liable to a property owner for the increased flow of surface water over or onto his property, arising wholly from the changes in the character of the surface produced by the opening of streets, building of houses, and the like, in the ordinary and regular course of the expansion of the municipality.” (pp. 531-532.) In the case at bar there is no indication the city disturbed in any way the natural drainage of the twenty block area in which plain tiffs’ property is located. According to the evidence and a map submitted by the parties the ditch must, from force of gravity, be characterized as a natural drainway for surface waters. Its course has not been altered. No new water has been collected and diverted into it from some other area or source. Obviously, in determining liability, a distinction exists and should be made between the discharge of surface water into a natural drainway on a person’s property and discharging it on land where it would not have naturally gone. A municipality has no right to alter the course of drainage of surface water so as to throw water upon property where it does not naturally flo.w (see 2 Famham, Waters and Water Rights, § 184). Plaintiffs’ real complaint here seems to be based on the fact that because of the city’s growth and development the ditch came to carry a sufficient volume of water to erode plaintiff’s wall into collapse and subsequently to invade their basement. Whenever a structure is erected in a city, whether it be house, driveway, sidewalk, street or whatever, the area for natural percolation of water is diminished and the flow of surface water is to that degree altered. Every new brick adds to the runoff. Where rapid growth has occurred the resultant problem is primarily an economic one for cities and citizenry and, under the present state of our law, its solution properly lies in concerted political action rather than in the courts. We approve and adopt the rule stated above in McQuillin and hold therefore the trial court erred in ruling a nuisance existed for which the city is liable. The judgment is reversed. approved by the court.	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The opinion of the court was delivered by Schroeder, J.: The ultimate question to be resolved by this appeal is whether a motor vehicle described as a “dune buggy” is “an automobile” within the meaning of the uninsured motorists provisions of an insurance policy. The case arises out of a written contract of insurance between the parties and involves primarily questions of law which stem from facts that are not basically in dispute. On the 2nd day of February, 1966, the Farm Bureau Insurance Company, Inc. (plaintiff-appellee) issued its family combination automobile policy to Harold L. Cool (defendant-appellant). The policy was in effect on April 1, 1967, when the accident in question occurred. The policy was written on' two automobiles owned by the appellant, a 1959 Cadillac 4-door hardtop and a 1954 Ford one-half ton pickup. Uninsured motorists coverage was provided on each automobile, the premium being $3.60 on the Cadillac, but only $2.70 on the Ford pickup. The policy contained an “other insurance” clause applicable to the uninsured motorists coverages-in the event an insured was injured while occupying a non-owned automobile. On the 1st day of April, 1967, Cool was injured in an accident-while riding as a fee-paying passenger in a vehicle referred to as a. “dune buggy,” which was being driven across the sand dunes of' the Little Sahara State Park near Waynoka, Oklahoma. Cool had. paid fifty cents to the owner of the dune buggy, Elden Shirley,, to take him for a ride over the sand dunes. The ride was described by Cool as “an amusement-type ride” and also as a sightseeing ride. The ride on which the accident occurred was Cool’s: third trip over the sand dunes on the day in question. Various witnesses, who also operated a dune buggy for hire in the park, described the ride as “both a sight-seeing tour and a thrill ride,” and. as “an amusement or thrill ride.” Shirley stated one could hardly keep from having a thrill, that the ride was only for personal amusement. Cool made a claim under the uninsured motorists provisions of his policy against Farm Bureau, and before Farm Bureau denied the claim Cool made demand for arbitration. Farm Bureau then instituted the instant action for declaratory judgment to determine the coverage of the policy and to enjoin Cool from proceeding with arbitration. The matter was then tried in Sedgwick County before the Honorable John A. Potucek, an assigned judge, on April 23,1968. Elden Shirley had purchased the dune buggy from his brother-in-law, Howard Young of Waynoka, Oklahoma, less than thirty days prior to the accident. Young had previously purchased it in the spring of 1966 from Howard Dannar of Topeka, Kansas, who had bought it from its original owner and builder, Dean Johnson of Waynoka, Oklahoma. The deposition testimony of Young and Shirley, admitted into evidence, and the testimony of Howard Dannar established the construction, use and inherent characteristics of the dune buggy upon which the trial court based its findings and conclusions. The basic chassis was taken from an old three-quarter ton truck, the motor was an old Chevrolet motor, and the transmission was from a Chevrolet truck. It was open and unenclosed and the doors, sides and top had been removed. It was not equipped with a windshield; it had no headlights or taillights; it had no horn; it had no fenders on the front and tractor fenders had been mounted on the rear; there was no properly functioning speedometer or gas gauge; there was no hood or cowling over the motor; the front and rear axles had been moved forward about forty inches in order to put all the weight on the back wheels so the front wheels would not bury in the sand; a tractor gas tank had been mounted in front of the radiator; a heavy bar or piece of railroad rail about eight feet long and weighing ten to fifteen pounds per foot had been welded across the back where the frame had been cut off; large 1600 x 16 airplane bomber low pressure (5-7 psi) balloon tires had been placed on the back wheels; the springs had been removed between the rear axle and the frame; and a sign on the rear of the dune buggy stated, “Not responsible for accidents.” Howard Dannar testified he knew of his own personal knowledge that the dune buggy was not designed for, nor was it principally used for operation upon the highways, but rather was designed and built for use on the sand dunes at the park. Elden Shirley, the owner and operator at the time of the accident, testified he considered it to be an off-the-road vehicle, and that no one would want to drive it on the highway because it was actually “no highway vehicle.” The dune buggy was kept on the Waynoka, Oklahoma, farm of Howard Young, the person from whom it had been purchased by Elden Shirley less than thirty days prior to the accident. Young was permitted to use it any time he wanted. He used it principally off the road as a utility vehicle around his farm. He did not use it for a highway vehicle. He had used it to pull tractors, build fence, hunt, pull a harrow and a drill, and feed cows with it. On the day of the accident the dune buggy was not driven to the Little Sahara State Park by Young or Shirley, but was towed behind Young’s pickup. It had been driven on the public roads only occasionally for short distances, and all the rest of the time it was driven in the sand dunes, on the farm or in the fields. There is no motor vehicle certificate of title to the dune buggy in question. All transfers of ownership from its original owner, Dean Johnson, to its present owner, Elden Shirley, have been made without an assignment or the transfer of a title certificate of any kind. The dune buggy was never licensed or registered as an automobile or highway vehicle with the state of Oklahoma by any of its owners. Howard Dannar had tried to obtain a license but was told there was no way of tagging the vehicle. The dune buggy was not equipped as required by the statutes of Oklahoma for use on the highways of the state. Various types of dune buggies were operated in the Little Sahara State Park by a number of persons. In order to operate a dune buggy for hire lawfully in the park, a license or permit was required by the Oklahoma State Industrial and Development Council. To obtain such permit an applicant was required to carry special public liability insurance on the dune buggy while being operated in the park, and to pay ten percent of the fees collected to the state of Oklahoma. Elden Shirley, who was operating the dune buggy in question at the time of the accident, had not obtained a permit from the state of Oklahoma and did not carry a policy of insurance specifically written on his dune buggy. Howard Young, the prior owner, had inquired about insuring this particular dune buggy, but was told by his insurance agent that it could not be insured. Other dune buggy owners testified that a special policy with an extra high premium was required to insure a dune buggy, and that liability insurance alone would cost from $175 to $250 per year. The trial court held the uninsured motorists provisions of the policy of insurance issued by Farm Bureau did not apply to cover the accident in question. The trial court, among the reasons given, stated the dune buggy in which Cool was riding was not “an automobile” within the meaning of the uninsured motorists provisions; and the dune buggy was “equipment designed for use principally off public roads” and came within the provision of the policy excluding such equipment from uninsured automobile coverage. Accordingly, a declaratory judgment was entered in favor of Farm Bureau and a permanent injunction issued restraining and enjoining Cool from further proceeding with the arbitration proceedings instituted by him. Protection against uninsured motorists is covered in Part IV of Cool’s Farm Bureau policy. Including the caption it reads in material part as follows: “Part IV — Protection Against Uninsured Motorists “This Form Protects Insureds Who are not Contributorily Negligent Against Bodily Injury Caused by Negligent Uninsured and Uit-and-Run Motorists. “Coverage J — Uninsured Motorists (Damages for Bodily Injury.) To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called Todily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.” Part IV of the policy then further defines an “uninsured automobile” as including a trailer of any type and means: an automobile or trailer with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at least in the amount specified by the financial responsibility law or a hit-and-run automobile. The policy then provides: “but the term ‘uninsured automobile’ shall not include: “(5) a farm type tractor or equipment designed for use principally off public roads, except while actually upon public roads.” In Part I of the policy the insurance company excluded liability for bodily injury or property damage arising out of the operation of farm machinery. The rules for construing insurance contracts have been enumerated many times by this court. Although ambiguities in the wording of an insurance contract are to be construed in favor of the insured, this rule of construction has no application whatever to language that is clear in its meaning. Unless a contrary intention is shown, words used in an insurance contract are to be given the natural and ordinary meaning they convey to the ordinary mind. The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties at the time it was made as expressed therein. (Kendall Plumbing, Inc. v. St. Paul Mercury Ins. Co., 189 Kan. 528, 532, 370 P. 2d 396.) In determining the intention of the parties under the above rule the test is not what the insurer intended the words of the policy to mean, but what a reasonable person in the position of the insured would have understood them to mean. (Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571.) Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. (Simonich, Executrix v. Wilt, 197 Kan. 417, 423, 417 P. 2d 139.) The Tenth Circuit Court of Appeals in Thomas v. Continental Casualty Company, 225 F. 2d 798 (10th Cir. 1955), said: “. . . All ambiguities will be resolved against the insurer, but the insured is charged with the plain ordinary meaning of inartistic words, and we will not torture words to import ambiguity where ordinary meaning leaves no room for such. . . . Words do not become ambiguous simply because lawyers or laymen contend for different meanings, or even though their construction becomes the subject matter of litigation.” (p. 801.) In Ferguson v. Phoenix Assurance Co., 189 Kan. 459, 370 P. 2d 379, 99 A. L. R. 2d 118, this court said: “It is a generally accepted rule that insurance policies are to be construed in favor of the insured and against the company. This rule, however, is to be invoiced only where there exists rational grounds for construction of the policy. That is, the contract must contain provisions or language of doubtful, ambiguous or conflicting meaning, as gathered from a natural interpretation of its language. . . . If the language when given its everyday commonly accepted meaning is clear and specific in presenting the subject matter at hand, the objective to be accomplished, the burdens assumed, and the benefits to be enjoyed or re ceived, then the terms of the policy cannot be said to be doubtful of meaning or conflicting in terms. Under these circumstances, courts are not at liberty to indulge in a construction that would give an unnatural meaning to the language in order to accomplish results that could not be shown to have been in the minds of the parties. . . . “Where an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. . . .” (p.463.) While the parties to this action concede the foregoing rules, their application of these rules to the instant case leads to divergent conclusions. The insurance company contends the dune buggy in question is not an automobile within the meaning of that term as used in the policy of insurance, and the insured contends it is an automobile within the meaning of the policy. The uninsured motorists provisions of an insurance policy were before this court recently in Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P. 2d 34. There it was said the uninsured motorists protection follows a person whether he is a passenger or a pedestrian. The insured here relies upon this proposition, but he overlooks the fact that to have any uninsured motorist coverage at all, one must have been injured by an uninsured automobile within the meaning of the policy of insurance. The insured analyzes the various provisions of the policy and concludes that the term “automobile” as used in the policy here in question is an imprecise term. To illustrate this point he says: “. . . Presumably, the term ‘uninsured automobile’ as used in the policy would have included ‘a land motor vehicle or trailer if operated on rails or crawler treads, or while located for use as a residence or premises and not as a vehicle, or ... a farm type tractor or equipment designed for use principally off public roads except while actually upon public roads. . . .’ had such vehicles not been withdrawn from the policy by its terms. The insurance company, which prepared the insurance contract, could have, but did not exclude the automobile which had been modified from a pickup truck in which the appellant was a paying passenger at the time he was injured.” The insurance company, on the other hand, resorts to the definition of an automobile in Webster’s Third New International Dictionary, Unabridged, which defines an automobile as a four-wheeled automotive vehicle designed for passenger transportation on streets and roadways, etc. It also relies upon a similar definition in The Random House Dictionary of the English Language, 1966 edition. Eased upon such definitions it is argued the term “automobile,” as used in the policy, does not cover the dune buggy here in question because it was not designed for passenger transportation on streets and roadways. As a generic word, “automobile” is broad enough to include all forms of self-propelling vehicles. However, the word is to be defined in a particular case from its association in the context and by considering the object or purpose of the instrument in which it is used. The manner in which a vehicle is used, as well as its construction, is an important factor in determining its character. (Washington Nat. Ins. Co. v. Burke, 258 S. W. 2d 709 (Ky. 1953); and Poncino v. Sierra Nevada L. & C. Co., 104 Cal. App. 671, 286 Pac. 729.) In Williams v. Standard Accident Ins. Co., 158 C. A. 2d 506, 322 P. 2d 1026, the court said: . . Automobile is general name adopted by popular approval of all forms of self-propelling vehicles for use on highways and streets, and is presumed to have been used in indemnity provision of accident policy in its common, general, and popular sense, in absence of proof to the contrary. . . (p. 510.) It would be improper to isolate Coverage J in Part IV of the policy and determine the meaning of the term “automobile” as used in the policy solely from this language. All uninsured motorists provisions should be considered in the light of the subject matter with which the parties are dealing and the purpose to be accomplished, and the language used must be given its ordinary and commonly accepted meaning. (Mittelsteadt v. Bovee, 9 Wis. (2d) 44, 100 N. W. 2d 376.) In this connection language in the exclusions is significant. In applying the foregoing factors to the present case, the intention expressed in the policy is that the uninsured automobile covered by the policy is a motor vehicle that is designed for or used on a public roadway. Application of the foregoing factors to the present case clearly shows that the dune buggy was not within the generally accepted or ordinary meaning of the term “automobile.” It was not thought of as an automobile by those who owned it. It was sold by all successive owners without automobile title certificates of any kind. It was not suitable or safe for use on highways and streets. It was not designed for use on public roads, but was designed and intended for use on the rolling sand dunes of the Little Sahara State Park. It was used only for giving thrill and amusement rides across the sand dunes or occasional farm work and hunting. It was never used principally to transport persons on any public roads or highways. The risk involved in riding in the dune buggy was much greater than while riding in an automobile. The safety equipment normally found on an automobile was totally lacking on the dune buggy. There were no bumpers, no rear springs, no doors or sides, no roof, no mirror, no horn, and no headlights or taillights. The dune buggy was not and could not have been licensed or registered as an automobile with the state of Oklahoma for use on highways and streets because it did not have the required safety equipment. Exclusion (5) in Part IV of the policy, heretofore quoted, is subject to the same interpretation. That is, the dune buggy in question is “equipment designed for use principally off public roads,” and it was not actually being used upon the public roads when the accident occurred. It was therefore excluded from coverage as an uninsured automobile. On this point the insured argues the word “equipment” following the conjunction “or” in Exclusion (5) relates back to the descriptive words “farm type.” He seeks to buttress this argument by the exclusion under Part I of the policy which is designed to exclude liability for bodily injury arising out of the operation of farm machinery. His argument then proceeds on the assumption that the dune buggy is not “farm type” equipment. A resort to the decided cases on the point, however, does not confirm the insured’s position. In Beagle v. Automobile Club Ins. Co., 18 OO (2d) 280, 176 N. E. 2d 542, the question presented was whether a modified stock car used for racing was “other equipment designed for use principally off public roads.” The court held it was. There the plaintiff was injured at a race track when a wheel on one of the modified stock car racers came off and struck him. The court held the insurance company was not obligated to pay the plaintiff’s medical expense under the medical payments portion of the policy issued to the plaintiff, because the plaintiff was not injured by an automobile within the meaning of the policy. The language describing the modifications made to the automobile in that case to equip it for racing in the modified stock car races resembles in many respects the description of the dune buggy in the instant case. In the opinion the court said: “. . . the testimony shows that although it had a speedometer the cable was not attached and that big tires had been put on the wheels. Furthermore, the car was not licensed for the year 1957 to travel on the roads and highways and in the court’s mind the fact it could be driven on the highway, even though illegal, does not change the fact that the vehicle had been designed for racing purposes. In fact, it was carried to and from the track on a trailer and not under its own motive power. “. . . is it other equipment designed for use principally off public roads? The court thinks it is. “Equipment has been variously defined to include accessories but it may also mean the main vehicle itself. ... In the racing of automobiles, the automobile is part of the equipment for that dangerous business. “. . . This auto racer was designed principally for use off the public road, and therefore is not an automobile within the meaning of the definition in the policy.” (p. 281.) On similar facts the same result was reached in Williams v. Cimarron Insurance Company, 400 S. W. 2d 805 (Tex. Civ. App. 1966), affirmed 406 S. W. 2d 173. In the opinion the court there said: “. . . These statutes require automobiles which operate on public highways to be equipped with such safety equipment as horns, tail and head lights, signalling equipment, etc. The vehicle was completely lacking in the basic required equipment to permit it to be operated on public roads and highways. In view of the holding of the Beagle case, together with these additional facts, we conclude that the vehicle in question was designed ‘principally for use off public roads’ and that, therefore, is not an automobile within the meaning of the policy.” (p. 808.) The dune buggy in the instant case, like the modified stock car racers in the cases just cited, clearly was designed for use off public roads. Like the racers it is not an automobile within the meaning of the policy, but is “equipment designed for use principally off public roads” and is excluded from coverage. The insured’s contention that the rule ejusdem generis, thereby causing the exclusion to apply to farm type equipment only, is erroneous. In other cases where the same argument has been made the courts have refused to apply the ejusdem generis rule to the type of clause involved in the appellant’s insurance policy. (Livingston v. Nationwide Mutual Insurance Company, 295 F. Supp. 1122 [D. S. C. 1969]; Beagle v. Automobile Club Ins. Co., supra; and Williams v. Cimarron Insurance Company, supra.) Both the Beagle and Williams cases specifically considered and rejected the application of the rule to the exclusions in those policies. In rejecting the insured’s theory the court in Beagle said: “The rule ejusdem generis is that when general words follow an enumeration of particular cases, such general words are held to apply to cases of the same kind as those which are expressly mentioned. In the first place if the exception was just the words ‘a farm type tractor or other equipment’ there would be some substance to this claim, but the language is not general but specifies that such equipment be designed for use principally off public roads. That, in effect is true also of farm tractors — they are designed for use principally on the farm and not on the highways. The court feels this exception is not ambiguous and means just what it says. This auto racer was designed principally for use off the public road, and therefore is not an automobile within the meaning of the definition in the policy.” (p. 281.) and the Texas Supreme Court, in reviewing the Court of Civil Appeals in the Williams case, said: “We are unable to agree with petitioner’s argument [ejusdem generis]. To us, the restrictive proviso designates two distinct classifications. It plainly states that the word automobile does not mean ‘a farm type tractor or other equipment designed for use principally off public roads’. The phrase ‘designed for use principally off public roads’ does not convey the notion that something similar to a farm type tractor was intended by the contracting parties. . . .’’ (p. 175.) The insured attempts to distinguish the Beagle and Williams decisions on the ground that the clause in each of those cases used the word “other” preceding the word “equipment.” The clause in his Farm Bureau policy does not contain the word “other.” It is argued the absence of the word “other” in the instant policy suggests that the words “farm type” must be understood to modify the term “equipment” as well as the word “tractor.” We fail to see merit in this argument. In Livingston v. Nationwide Mutual Insurance Company, supra, the exclusionary clause did not contain the word “other,” and the court held the exclusion applied. There the policy was held not to cover a vehicle used solely for racing purposes which was transported from track to track by use of a trailer. In conclusion we hold the injury sustained by the insured as a result of an accident, while riding in the dune buggy here in question, was not covered by the uninsured motorists provisions of his Farm Bureau insurance policy. The judgment of the lower court is affirmed.	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The opinion of the court was delivered by Fatzer, J.: The appellant taxpayer is the owner and operator of nineteen producing gas wells in Stevens County. Pursuant to K. S. A. 79-332 it was required to file its statement of assessment of its leasehold interests and producing gas wells together with all casing and other equipment, with the county cleric acting as county assessor on or before April 1, 1968. The taxpayer failed to file such statement on April 1, and further failed to file a request in writing for extension of time to file the rendition after April 1, 1968. On April 11, 1968, the taxpayer filed its statement of assessment with the county clerk. After ascertaining the justifiable value of the taxpayers property and assessing the same at 30 percent thereof, the assessing official added a ten percent penalty to the assessed valuation, and gave notice of such fact to the taxpayer. The justifiable value of the property was determined by tiae assessor in accordance with the taxpayer’s rendition statement, and the ten percent was added to that assessed taxable value as a penalty for the late filing of the statement of assessment. Thereafter, the taxpayer filed a complaint of assessment with, and appeared before, the Stevens County Board of Commissioners sitting as the County Board of Equalization pursuant to K. S. A. 79-1602, seeking relief from the ten percent penalty. Relief was denied. The taxpayer appealed to the State Board of Tax Appeals sitting as the State Board of Equalization pursuant to K. S. A. 79-1609. The statute authorizes any person aggrieved by any order of the County Board of Equalization to appeal to the Board of Tax Appeals by filing a written notice of appeal with such Board, stating the grounds thereof and a description of any comparable property or properties and the assessment thereof upon which he relies as evidence of inequality of assessment of his property, if that be the ground of the appeal, and by filing a copy thereof with the clerk of the County Board of Equalization within fifteen days after the date of the order from which the appeal is taken. (See, also, K. S. A. 79-1409.) On July 23,1968, the appeal was heard by the State Board of Tax Appeals sitting as the State Board of Equalization, and both parties offered evidence at length. Prior to the hearing, the county attorney of Stevens County filed a motion to dismiss the appeal upon the grounds 79-332 required the county assessing official to add the ten percent penalty for the late filing of the taxpayers rendition statement, and that neither the State Board of Equalization nor the County Board of Equalization was authorized by law to remove such penalty; consequently, the State Board of Tax Appeals sitting as the State Board of Equalization had no jurisdiction to hear and decide the controversy. The motion to dismiss was overruled. On October 30, 1968, the State Board of Tax Appeals sitting as the State Board of Equalization entered its order granting the relief sought upon the ground the taxpayer was in substantial compliance with 79-332 and the penalty was improperly assessed; further, that because of the assessment of the ten percent penalty, the taxpayer’s property was assessed higher than other similar property in Stevens County and “therefore the penalties indicated (on the assessed taxable value of each of the nineteen leases) . . . should be stricken.” The order was that the “assessment on these leases as originally rendered (by the taxpayer) . . . should be the valuation used by Stevens County for tax purposes for 1968.” For some unexplained reason, the Board’s order did not arrive in Hugoton until December 9, 1968. The taxpayer received notice of the Board’s order on either December 9th or 10th. Since the county clerk and treasurer were unaware of the Board’s order prior to December 9, 1968, a tax statement, including the penalty, was mailed to the taxpayer. On December 11, 1968, the appellee county officials perfected an appeal to the district court of Stevens County from the order of the State Board of Tax Appeals pursuant to K. S. A. 74-2426. The notice of appeal alleged four reasons why the Board’s order should be set aside: (1) the ten percent penalty placed upon the taxpayer’s property was in compliance with K. S. A. 79-332, the provisions of which are mandatory and not discretionary; (2) neither the County Board of Equalization nor the State Board of Equalization had authority to relieve the taxpayer of the penalty; (3) the county attorney’s motion to dismiss the taxpayer’s appeal to the State Board of Tax Appeals should have been sustained, and (4) the matter in controversy did not in any way pertain to the equalization or the assessment of property taxes, and the appeal to the district court was properly taken pursuant to 74-2426. On January 10, 1969, the taxpayer appeared specially and moved to dismiss the county officials’ appeal, alleging six grounds upon which the purported appeal was void, and that the district court lacked jurisdiction to hear the same. The parties stipulated to the facts and the exhibits to be considered as evidence by the district court, which included, among other things, the taxpayer’s special appearance and its motion to dismiss the county officials’ appeal, the transcript of proceedings before the State Board of Tax Appeals sitting as the State Board of Equalization, and the affidavit of the taxpayer’s managing officer. Upon consideration of the stipulation of facts, the exhibits, and the affidavit, the district court made findings of fact and conclusions of law, overruled the taxpayer’s motion to dismiss the appeal, and entered judgment setting aside the order of the State Board of Tax Appeals sitting as the State Board of Equalization made on October 30, 1968, upon the grounds and for the reason the order was made without jurisdiction and was unlawful. This appeal followed. The assessment of oil and gas property in Kansas is essentially a self assessment system similar to our state and federal income tax system and is made in accordance with K. S. A. 79-329 to 79-334, inclusive. K. S. A. 79-332 reads in pertinent part. “When any person, corporation or association owning oil and gas leases or engaged in operating for oil or gas fails to make and file a statement of assessment under the provisions of this act on or before April 1, but shall file a statement: “1. Within fifteen (15) days thereafter, the assessor shall, after he has ascertained the value of the property of such taxpayer, add ten percent (10%) to the assessed taxable value as a penalty for late filing . . . “Provided, That for good cause shown the county assessor or county clerk acting as county assessor may extend the time in which to make and file such statement: Provided further, That such request for extension of time must be in writing and must be received by the county assessor or county clerk acting as assessor prior to the due date of the return.” The statute requires any person owning oil and gas leases or engaged in operating for oil or gas to file a statement of assessment of such personal property with the county assessing officer on or before April 1, or seek an extension of time in writing. A penalty is imposed against the property owner for failure to render such statement when due. Such a requirement is clearly within the province of the Legislature and must be complied with. The object, of course, is to make effective the legislative power to levy and collect taxes, and to assist the assessors to discover and assess property on which to levy such taxes. In the instant case, the statement of assessment was filed April 11, 1968, or within fifteen days after April 1, and the taxpayer made no request for extension of time in writing. After ascertaining the justifiable value of the taxpayer’s property and assessing the same at 30 percent of such value, the county clerk added ten percent to such taxable value as a penalty for late filing as directed by 79-332 (1). The assessment of such penalty is not a valuation or assessment function, and the requirement of the statute is mandatory. (85 C. J. S., Taxation, § 1025, p. 582; 51 Am. Jur., Taxation, §§667, 669, pp. 628, 629.) The assessing official has no discretion as to the imposition of the penalty and is required to impose it in all instances where the taxpayer fails to file a statement or assessment within the required time. However, the power to impose penalties on delinquent taxpayers is conferred only by statute, and before a penalty may be assessed, the record must clearly disclose the case comes squarely within the provisions of the statute. We have not overlooked the taxpayer’s contention the word “shall” as used in 79-332, should be construed as being directory and not mandatory, and the case of Curless v. Board of County Commissioners, 197 Kan. 580, 419 P. 2d 876, it cites and relies upon. That case dealt with the issuance of a renewal beer license and it was held the board was compelled to issue the license in question. Had the Legislature intended 79-332 to be discretionary, it would have made provisions for the assessing official to waive or excuse the penalty. Rut no exemption is provided as in other sections of Chapter 79 relating to taxation. See K. S. A. 79-1503 pertaining to inheritance taxes and for the waiver of interest by the director; K. S. A. 79-3228 (/) relating to the timely filing of state income tax returns and the waiver of penalties by the director for reasonable cause; K. S. A. 79-3410 relating to motor fuel tax and the waiver of penalties by the director where the delinquency was due to causes beyond the taxpayer’s control; K. S. A. 79-3615 (3) pertaining to sales tax and the waiver or reduction of penalties where failure to pay the tax was due to reasonable cause, and K. S. A. 79-3706 relating to compensating tax where the director is authorized to waive or reduce interest or penalty when the tax is not paid when due, due to reasonable cause. The fact the assessing official approved and used the taxpayer’s rendition statement in determining the assessed taxable value of its property for 1968, does not change the result. (85 C. J. S., Taxation, §1025 [2], p. 584.) The assessing official did not act unlawfully; there was no mistake in the property described in the tax rendition statement, and we are of the opinion the ten percent add-on penalty was applied by the assessor as required by law. The taxpayer’s contention the controversy before us pertains to a property tax equalization matter and that the State Board’s order was valid, is not well taken. The State Board of Tax Appeals is a creature of the Legislature. Rs authority and power is only such as is expressly or impliedly given by legislative enactment. If it attempts to exercise jurisdiction over a subject matter not conferred by the Legislature, its orders with respect thereto are without authority of law and void. (Republic Natural Gas Co. v. Axe, 197 Kan. 91, 96, 415 P. 2d 406.) As indicated, an appeal to the State Board of Tax Appeals may be taken from any order of the County Board of Equalization. (79-1609.) Where, as here, such an appeal was taken by the taxpayer, the State Board of Tax Appeals sitting as a State Board of Equalization, is granted jurisdiction and power pursuant to K. S. A. 79-1409 to equalize the valuation and assessment of property throughout the state, and is empowered to equalize the assessment of all property between persons, firms or corporations of the same assessment district. In the instant case, there clearly was no question as to the assessment, or the equalization of assessment of property for tax purposes involved in any of the proceedings before the Board of County Commissioners or the State Board of Tax Appeals sitting as Boards of Equalization. The record discloses, and the parties conceded at oral argument, there was no improper or excessive assessment of the taxpayer’s property for 1968. That valuation is conceded to be proper. The only question involved in the entire proceedings was the ten percent penalty which was added to the assessed taxable value pursuant to the terms of a mandatory statute, due to the delinquency of the taxpayer. As previously indicated, the assessment of the ten percent “add-on” penalty is not a valuation or assessment function. It is a sanction imposed by the Legislature against the taxpayer for failure to make timely rendition of property for taxation purposes. Its subject matter is not such as to confer jurisdiction upon the State Board of Tax Appeals to be modified, reduced, cancelled or eliminated, either directly, in the absence of statutory authority— and none has been cited — or indirectly, under the guise of a finding that its imposition caused the taxpayers property to be assessed “relatively higher than other similar property in said county and therefore the penalty . . . should be stricken.” We conclude the State Board of Tax Appeals has no appellate jurisdiction as a Board of Equalization over a penalty lawfully assessed under 79-332, or to remove such a penalty imposed by the county assessing official. The order of the State Board of Tax Appeals of October 30, 1968, sitting as a State Board of Equalization purporting to relieve the taxpayer of the penalty was made without authority of law and void, and the district court did not err in so concluding. The taxpayer contends the county officials had no right to appeal from the order of the State Board of Tax Appeals since the subject matter involved the determination, modification or equalization of the assessment of property for tax purposes, which precluded the right to appeal; further, that appeals to the district court from final orders of the Board are applicable only to such matters as are appealed to that Board from orders of the Director of Revenue or the Director of Property Valuation. It cites and relies upon Union Pacific Railroad Co. v. Sloan, 188 Kan. 231, 361 P. 2d 889, and City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 360 P. 2d 29. We think the appeal was authorized by K. S. A. 74-2426. The pertinent portion reads: “Whenever the board of tax appeals shall enter its final order on any appeal, said board shall mail a copy of its order by registered or certified mail to the person, firm, corporation or association who was a party to such appeal. Within thirty (30) days after the mailing of the final order of the board, any party to such appeal may appeal to the district court of the proper county: Provided, That no such appeal may be taken to the district court from any order determining, approving, modifying or equalizing the assessment of property for property tax purposes . . . Appeals from any final order made by the board as to ad valorem tax liability shall be to the district court of the county in which the property involved is located . . . Jurisdiction to hear and determine such appeals is hereby conferred upon the district courts of this state. Such an appeal shall be heard as an equity proceeding, and shall proceed as an original action. Trial may be had or any order made in term or vacation.” (Emphasis supplied.) Our decisions in Union Pacific and Jones-Laughlin applied the statute as it existed in G. S. 1957 Supp. Those cases dealt with orders made by the Board of Tax Appeals on original applications for relief of tax grievances under G. S. 1949, 79-1702. Attempted appeals to the district courts were dismissed. It was held in both cases the provisions for appeal to the district court from a final order of the Board of Tax Appeals pursuant to G. S. 1957 Supp., 74-2426, were applicable only to such matters as were appealed to the State Board from orders of the Director of Revenue or the Director of Property Valuation. Those decisions do not control the instant case. The statute here involved was amended in 1958 and K. S. A. 79-1609 was enacted in 1959 (L. 1959, Ch. 376, § 4) authorizing any person aggrieved by any order of the County Board of Equalization to appeal to the Board of Tax Appeals as heretofore noted. The 1958 amendment to 74-2426 (L. 1958, Ch. 21, § 1) added the proviso: “That no such appeal may be taken to the district court from any order determining, approving, modifying, or equalizing the assessment of property for property tax purposes.” The statute was also amended in 1969 (L. 1969, Ch. 368, § 1, now K. S. A. 1969 Supp. 74-2426) in matters not pertinent to this appeal. We are of the opinion the express affirmative provisions of the statute granting an appeal to the district court from any final order entered by the State Board of Tax Appeals on any appeal, including an appeal from an order of the County Board of Equalization, which does not modify or equalize the assessment of property for property tax purposes, confers jurisdiction upon the district court of the proper county to hear and determine such appeal. Venue for such an appeal as to ad valorem tax liability is to the district court of the county in which the property is located — here, Stevens County. The appeal is taken by filing written notice stating it is to the district corut and alleging the facts upon which it is grounded. The statute provides the Director of Property Valuation shall be a party to such appeal, and that the clerk of the court shall issue summons and cause the same to be served upon him. That was done in the instant case. The director answered and admitted the ten percent penalty was placed upon the taxpayer s property in compliance with 79-332, which was mandatory and not discretionary. The director’s further allegation that he was not an indispensable, necessary or proper party in the action, was not determined by the district court. We conclude the district court had jurisdiction of the appeal. The ten percent add-on penalty was properly imposed by the county assessing official pursuant to a mandatory statute due to the delinquency of the taxpayer. That was not an assessment function— it was an administrative act vested in the county assessing official by the Legislature. Moreover, the final order of the State Board in no wise determined or involved the equalization of the assessment of property for property tax purposes. As that final order indicates, the only matter involved was the propriety of the penalty. The order directed that the penalty be stricken, and stated that the assessed value of the leases “as originally rendered (by the taxpayer) . . . should be the valuation used by Stevens County for tax purposes for 1968.” That was the valuation used by the assessing official in determining the assessed taxable value before the penalty for late filing was lawfully imposed. Other questions have been raised but the foregoing disposes of the appeal and it is not necessary to discuss and decide them. The appeal to the district court was properly and timely taken, and it did not err in rendering judgment setting aside the final order of the State Board as being entered without authority of law. The judgment is affirmed.	[ -48, -22, -15, 92, 44, 96, 43, 25, 73, -11, -26, 87, -87, -38, 1, 123, -77, 21, 117, 106, -61, -73, 83, -61, -44, -69, -103, -35, -69, 92, -20, -60, 76, -95, 10, 21, 2, -126, 79, 84, 78, 6, -87, -39, -40, 10, 46, 75, 114, 75, 113, 15, 123, 40, 28, -61, 8, 44, -103, -94, -123, -15, -94, -99, 95, 22, 48, 66, -36, 69, 72, -82, -104, -71, 64, -24, 127, 38, -106, -12, 47, -71, -83, -18, 66, 51, 21, -17, 108, -104, 14, -42, -115, -25, -105, 24, 107, 11, -75, 29, 124, 82, 6, 126, -18, 4, 95, 108, -105, -34, -58, -79, 13, 97, -126, 11, -1, -123, 48, 113, -49, -94, 92, 71, 50, 31, 70, -80 ]
The opinion of the court was delivered by O’Connoe, J.: This is a direct appeal in a criminal action wherein the defendant, Larry J. Henderson, was convicted by a jury of first degree robbery (K. S. A. 21-527) and possession of a pistol after conviction of a felony (K. S. A. 21-2611). Following denial of defendant’s motion for new trial, the district court sentenced him under the habitual criminal act to consecutive sentences of twenty-five and fifteen years, respectively, in the state penitentiary. The questions presented relate to alleged trial errors defendant contends denied him a fair trial, namely, that the court erred (1) in refusing to allow court-appointed counsel to withdraw; (2) in not allowing the defense to cross-examine two state’s witnesses and to call defense witnesses regarding the true identity of the robber; and (3) in allowing a police officer to remain in the courtroom, and thereafter testify, in violation of the court’s order for separation of all witnesses. The charges of which defendant was convicted stemmed from an armed robbery of a Wichita dry cleaning establishment between 3:30 and 5:00 p. m. on March 9, 1968. The robber, armed with a pistol and dressed in dark pants, white shirt, and a blue cardigan sweater, entered the cleaning shop, pointed the gun at two women employees, one of whom was the manager and part owner, and demanded they open the cash register. Upon the robber’s threat that he would shoot her, the manager opened the register and the robber removed approximately $150. As the robber departed, a customer by the name of James Gott entered the shop. On being told that the shop had just been robbed, Mr. Gott rushed outside and saw the robber fleeing in a black automobile. Mr. Gott and his wife gave chase in their automobile until the robber came to a stop, abandoned his car, and continued his flight on foot. At this point Mrs. Gott jumped out of her car and ran to a nearby house to telephone the police; her husband continued the chase and glimpsed the robber running into a house on West Kincaid. When the police officers arrived, they entered the house into which the robber had disappeared and arrested the defendant. One of the officers, in looking around outside the house, found a sweater in the eaves trough similar in color and material to the one worn by the robber, with a pistol wrapped inside it. Armed with a search warrant, the officers subsequently searched the house and recovered the money from an ice tray in the refrigerator where it had been placed by Joyce Eshom, who lived in the house and to whom defendant had handed the money before he was apprehended. The defendant was taken to the police station where later that evening the manager of the cleaning shop, her employee, and the Gotts identified him in a lineup as the robber. Following arraignment and waiver of preliminary hearing, defendant was bound over to district court for trial. On September 16, 1968, the district court appointed Mr. D. Keith Anderson, of Wichita, to represent defendant. During the three days immediately following his appointment, Mr. Anderson had at least five conferences with the defendant concerning the facts and merits of the case, and conducted an investigation in preparation for trial. On Friday, September 20, four days prior to commencement of trial, Anderson again consulted with his client and presented to him the theory of defense consistent with the facts as previously related to him by defendant and the circumstances disclosed by his investigation. Defendant rejected Anderson’s theory and insisted the case be tried upon a concocted “story” which defendant, for the first time, related to Anderson. Believing the “story” to be totally false, Anderson advised the defendant he would not be a party to perjury. Defendant replied he was willing to run the risk of perjury, and insisted the trial proceed on the basis of his ‘new” version. The following morning, Saturday, September 21, Anderson concluded that because of the serious ethical conflict in which he found himself involved, he could not represent the defendant in the fashion demanded, and so advised David P. Calvert, the deputy county attorney. Since trial was set for Tuesday (the 24th), time in which to formally present a motion to withdraw was insufficient. Thus, Anderson, accompanied by Calvert, personally contacted Judge B. Mack Bryant, before whom the case was scheduled to be tried, and Judge Howard C. Kline, administrative judge of Sedgwick county, whose decision governed the granting of a withdrawal of court-appointed counsel, at their respective residences and made oral application to withdraw. In support of his request Anderson advised Judge Bryant and Judge Kline of defendant’s avowed intention to present perjured testimony and of his demand that his attorney assist him in the unethical conduct of the trial, but divulged no confidential attorney-client communications. The request was denied and Anderson was directed to proceed to trial, making whatever statements he considered necessary in the record to protect himself ethically. On Sunday, Anderson again consulted with defendant, fully advising him of all that had transpired the preceding day. At docket call the following morning (Monday) defendant instructed Anderson to request a jury trial and to proceed with his case on the basis of the “new” verision. He also told Anderson he believed Anderson had betrayed the attorney-client relationship between them by his actions the preceding Saturday. Anderson advised defendant that if he was dissatisfied with him as counsel, he should so announce in court and request appointment of another attorney. According to Anderson, defendant refused, “indicating that I had prejudiced his rights and he desired that prejudicial error to remain unaltered for purposes of appeal should a conviction result.” When the case came on for trial Tuesday, September 24, and prior to the impaneling of the jury, Anderson recited the above facts and again asked leave to withdraw and for new counsel to be appointed. Anderson stated to the court defendant then refused to cooperate with him in preparation for trial, and further refused to divulge what his testimony would be. The court denied the request, after which Anderson said he was prepared to represent the defendant to the best of his ability. Anderson at that time also presented a motion in limine, which, after argument, was overruled. A jury was impaneled and sworn. After completion of the state’s case, Mr. Anderson again renewed his motion to withdraw, and the following colloquy took place outside the presence of the jury: “Mr. Anderson: I wish to make a short statement and I relate at this time to the detailed statement made by me preliminarily in my motion for permission to withdraw as court-appointed counsel and now state that I have fully advised the defendant again of my position in this case and that he is testifying against my advice hut that he has the right to testify and tell his story but that he is shouldering the responsibility of that story and any consequences that may result therefrom. “The Defendant: Your Honor, if I may ask, I would like to know how in the world — you know yourself that this man has tried to resign from me twice and it’s on record that I did not want this man for the attorney to represent me and that he did not want to represent me and it is on record, and how in the world can I get a fair trial out of this deal? “The Court: I think, Mr. Henderson— “The Defendant: You’ve overruled every motion that we’ve had. This is very plain to see. And any defense that I have had in this case, the prosecuting attorney has got some kind of explanation for it. He’s got two or three ways to cover it already before I even get it out of my mouth. “Mr. Anderson: Your Honor, I’d like to say very shortly that I think this is a contradiction to my earlier motion. This is the first time the defendant has stated he did not desire my representation herein; and if he is now stating this, then I revive my motion to withdraw; although the Court overruled it, I will continue to represent him to the best of my ability until the determination of this case, until the Court relieves me of my duty herein. “The Defendant: Your Honor, if I may say so, I did not say that I did not want him in this motion before but he plainly stated in his statement that he made to you that he read off that I told him that I could not trust him. Is that no [sic] so? And, now, I’m making a motion for this. “The Court: Well, what I just said was that any motion heretofore made has already been ruled on and I’m not going to change my ruling, and any motions made here and now, at least up to the present time, are overruled. “The Court: ... As I was about to say before I was interrupted, I assume that Mr. Anderson has advised the defendant of his right to take the stand if he desires. And if he does not desire to take the stand, if Mr. Anderson has not advised the defendant, the Court will now advise the defendant that this jury will be instructed that the defendant’s failure to take the stand is not to be considered by them in any manner as any indication of his guilt in this case. That will be one of tire instructions that would be given a jury.” The motion to withdraw was again overruled. Mr. Anderson proceeded to make an opening statement for the defense, and presented one witness, Mr. David C. All, an attorney who, at defendant’s request, was present at the time of the lineup. Mr. All testified that defendant at the time appeared to be suffering from a hangover and from the effects of alcohol. Upon inquiry by the court, defendant stated he did not wish to testify in his own behalf. Final arguments were presented by the deputy county attorney and by Mr. Anderson. The jury was instructed and subsequently returned verdicts of guilty on both counts. Mr. Frederick L. Haag was appointed to represent defendant after he announced his intention to appeal. Defendant’s main complaint is that he was denied full and fair representation when the trial court refused Anderson’s motion to withdraw and request for the appointment of new counsel. Defendant is not claiming he was inadequately represented; rather, he contends the trial court’s action resulted in his not being “fully and fairly” represented, as required by K. S. A. 62-1304a. Looking first at the propriety of Mr. Anderson’s actions after he learned of the defendant’s “new” version of the facts and his insistence upon the defense being conducted along that line, we are of the opinion Anderson acted according to the moral and ethical obligations required of him as a member of the legal profession. The law requires honest, loyal, genuine, and faithful representation of a defendant by his attorney, whether employed or court-appointed. (State v. Brown, 204 Kan. 430, 464 P. 2d 161; State v. Calhoun, 194 Kan. 378, 399 P. 2d 886.) A lawyer’s professional duty requires him to be honest with the court and to conform his conduct to recognized legal ethics in protecting the interests of his client. Counsel, however, is never under a duty to perpetrate or aid in the perpetration of a crime or a dishonest act to free his client. Neither is he required to stultify himself by tendering evidence or making any statement which he knows to be false as a matter of fact in an attempt to obtain an acquittal at any cost. In conducting his task, counsel should be guided by the standard “all fair and honorable means,” as laid down by Canon 5 of the American Ear Association Canons of Professional Ethics (198 Kan. xvn), in discharging the duty imposed by that canon “to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.” For a few of the decisions speaking of these ethical considerations, see, Jackson v. United States, 258 F. Supp. 175, affirmed, 384 F. 2d 375, cert. denied, 392 U. S. 932, 20 L. Ed. 2d 1392, 88 S. Ct. 2298; Bowler v. Warden, Maryland Penitentiary, 236 F. Supp. 400; United States v. Von Der Heide, 169 F. Supp. 560; Williams v. Beto, 354 F. 2d 698 (5th Cir., 1965); Wood v. United States, 357 F. 2d 425 (10th Cir., 1966), cert. denied, 385 U. S. 866, 17 L. Ed. 2d 94, 87 S. Ct. 129. Also, see, Canons, 15, 16, 22, 31, and 32. The high ethical standards demanded of counsel in no way mollify the fair, full and loyal representation to which an accused is entitled as a part of due process. They are entirely consistent with the objective of our legal system — to ascertain an accused’s guilt or innocence in accordance with established rules of evidence and procedure designed to develop the facts truthfully and fairly. Counsel, of course, must protect the interests of his client and defend with all his skill and energy, but he must do so in an ethical manner. We perceive nothing violative of the confidentiality inherent in the attorney-client relation by Mr. Anderson’s making known to the court defendant’s avowed intention of presenting perjured testimony. While as a general rule counsel is not allowed to disclose information imparted to him by his client or acquired during their professional relation, unless authorized to do so by the client himself (State v. Leigh, 178 Kan. 549, 289 P. 2d 774), the announced intention of a client to commit perjury, or any other crime, is not included within the confidences which an attorney is bound to respect. (Canon 37; also, see, K. S. A. 60-426 [b] [1].) Moreover, the record does not disclose the specific details of any communications between the defendant and his counsel were ever divulged by Anderson to the court or the prosecution. When Anderson learned that the defendant would not agree to the presentation of a defense consistent with the facts defendant initially related to him, and which were substantiated by Anderson’s own independent investigation, he acted according to the dictates of his own conscience and his professional obligation to the court, and properly asked to be relieved from his assignment. When the trial judge became informed of counsel’s predicament, he was faced with a difficult decision calling for the exercise of sound judicial discretion. The right to counsel, which the court was obligated to safeguard for the accused’s benefit, contemplates the guidance of a responsible, capable lawyer devoted to his client’s interests. (Ray v. State, 202 Kan. 144, 446 P. 2d 762.) As long as the trial court had a reasonable basis for believing that the attorney-client relation had not deteriorated to a point where appointed counsel could no longer give effective aid in the fair presentation of a defense, the court was justified in refusing to appoint new counsel. A careful study of the record convinces us that the situation confronting the court, and about which defendant now complains, was precipitated by the defendant himself. On the morning of trial when Anderson asked the court for permission to withdraw, he told the court he had previously asked the defendant to request that another attorney be appointed in his stead but defendant refused because he “desired the prejudicial error” remain for purposes of appeal. Defendant in no way denies his attorney’s statement, as evidenced by the colloquy set forth above at the close of the state’s evidence. Obviously, the defendant wished to dictate the conduct of his defense in a manner which the law does not countenance, and by complicating the situation, hoped to gain some advantage, both at trial and on appeal. One who by his own acts invites error is in no position to complain or take advantage of it on appeal. (State v. Cantrell, 201 Kan. 182, 440 P. 2d 580, cert. denied, 393 U. S. 944, 21 L. Ed. 2d 282, 89 S. Ct. 315.) Despite the fact that defendant then changed his stance and, according to Anderson, refused to cooperate and to divulge just what his testimony would be, Anderson, with commendable professional candor and patience, stated he was prepared to represent the defendant to the best of his legal ability. Defendant, by his devious methods, invited the only course of action available to the trial judge if the case was to be disposed of with any reasonable degree of dispatch. The effective and efficient administration of criminal justice requires that a trial court not yield to every whim and demand of a defendant. Had the court granted counsel’s motion to withdraw, the same predicament could easily have been precipitated by defendant with respect to any new counsel that might have been appointed. The trial judge’s confidence in Mr. Anderson’s capability to remain in the case was well placed, in our view. In addition to presenting the motion in limine, Anderson thoroughly cross-examined the state’s witnesses, particularly as to the identity of the person who committed the robbery. He made an opening statement for the defense and presented the testimony of an attorney present at the lineup with regard to the defendant’s behavior and appearance, which, of course, was relevant to the question of identification. Further, defendant was fully informed by counsel, as well as the court, of his right to take the stand and “tell his story,” but defendant declined to do so. Success can never be deemed the measure of whether or not an accused has had the effective assistance of counsel. The representation accorded defendant was far more than token or perfunctory in nature, and there can be no question about its adequacy. (Baker v. State, 204 Kan. 607, 464 P. 2d 212; State v. Brown, supra.) Under all the facts and circumstances, we hold that the trial judge did not abuse his discretion to the prejudice of defendant’s substantial rights by requiring Anderson to remain as counsel. (See, State v. Way, 204 Kan. 375, 461 P. 2d 820; State v. Walker, 202 Kan. 475, 449 P. 2d 515.) Defendant’s contention that the trial court committed prejudicial error by not allowing the defense to cross-examine two of the state’s witnesses and to call defense witnesses regarding the identity of the robber is without merit. This point was the basis of the motion in limine which was overruled at the beginning of trial. The record discloses that during the cross-examination of a prosecution witness, Joyce Eshom, defense counsel asked to be allowed to question the witness regarding her relationship with another prosecution witness and her knowledge of an unidentified person resembling the defendant who allegedly committed the robbery. Counsel also at that time made known to the court that defendant had asked him to call six defense witnesses, among whom was a district judge, the bailiff, and a deputy county attorney, whose testimony would tend to show another person was, in fact, the guilty one. The trial court denied defense counsel the right to pursue this line of questioning, and further indicated he would not permit the defendant to call the six witnesses. The defense made no further attempt during the presentation of its case to call any of the named witnesses. Defendant contends the proffered evidence, though not strong, was relevant to the issue of identity inasmuch as it tended to disclose the offense was not committed by defendant, and that two prosecution witnesses were concealing the identity of the true culprit for reasons of their own. While the sufficiency of the “proffer” is open to serious question (see, K. S. A. 60-243 [c] and 60-405), we have no hesitancy in holding the exclusion of the suggested evidence did not amount to prejudicial error requiring a new trial. The state relied almost entirely upon direct evidence for defendant’s conviction. He was positively identified by the victims of the crime, by the persons who followed him from the scene, and by Joyce Eshom, the person to whom defendant gave the money from the robbery. There was no other evidence remotely connecting a third person with the commission of the crime. Ordinarily, a court does not err in refusing to admit evidence tending to connect a third person with an offense except where the prosecu tion relies upon circumstantial evidence for conviction. (State v. Neff, 169 Kan. 116, 218 P. 2d 248, cert. denied, 340 U. S. 866, 95 L. Ed. 632, 71 S. Ct. 90; State v. Scott, 117 Kan. 303, 235 Pac. 380.) Just today we held that where the state’s case is built on direct evidence, evidence that someone other than the defendant had a possible motive to commit the crime is irrelevant, absent other evidence to connect such third person with the crime. (State v. Potts, 205 Kan. 42, 468 P. 2d 74.) Also lacking in- substance is the further contention that the court committed prejudicial error in allowing a detective to testify for the state after he had remained in the courtroom throughout the trial in violation of the court’s order for separation of all witnesses. Violation of a separation order does not disqualify a witness from testifying in the case, and the court, within its discretion, may admit his testimony, notwithstanding violation of such order. (State v. Trotter, 203 Kan. 31, 453 P. 2d 93; Barber v. Emery, 101 Kan. 314, 167 Pac. 1044; State v. Falk, 46 Kan. 498, 26 Pac. 1023.) There is no showing that the court abused its discretion in permitting the detective to testify. The grounds raised in defendant’s motion for new trial, other than those discussed herein, have neither been specified as error nor briefed; hence, they are not reviewable. From the overall record we are satisfied the defendant received a fair trial with the aid of competent counsel, and the trial court properly overruled the motion for new trial. The judgment is affirmed.	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The opinion of the court was delivered by Harman, C.: Defendant appeals from his conviction of the offenses of burglary in the second degree and grand larceny. Allegedly a number of suede and leather coats were stolen in the burglary of a cleaning shop. Defendant’s complaints on appeal center upon an instruction to the jury to the effect that possession by an accused of property recently stolen in a burglary is sufficient to sustain a conviction of burglary and larceny where satisfactory explanation is not given. The instruction given was similar to that sustained against attack on other grounds in State v. Brown, 203 Kan. 884, 457 P. 2d 130, and it correctly embodies our law (State v. Walker, 202 Kan. 475, 449 P. 2d 515). The parties agree the other instructions given the jury, which have not been abstracted here, correctly stated the law as to defendant’s presumption of innocence and the state’s burden of proof to prove guilt beyond a reasonable doubt. Sometimes a single instruction isolated from the context of the other instructions given may be subject to criticism, yet when all the instructions are taken as a whole, as they must be, the law is correctly stated. The instruction given here did not, as contended, have the effect of shifting the burden of proof upon the defendant (State v. Bell, 109 Kan. 767, 771, 201 Pac. 1110). Defendant argues the instruction was inappropriate because under the evidence someone else could also have been inferred to be guilty of the offense. Despite the possible involvement of any other individual, the finger of guilt pointed squarely at defendant. He was arrested on a traffic charge the third morning after the burglary. He was wearing a coat taken in the burglary. His initial explanation was he had purchased the coat at Sears. When confronted with the fact the garment bore a J. C. Penney label he then stated he had purchased it from a named individual. A police search failed to locate this person. Later defendant confessed burglarizing the cleaning shop and taking the property- He accompanied officers to his home where seven or eight of the stolen coats were recovered. At trial he repudiated this confession, testifying he had bought the garments from still another person, whose only residence at the time of tidal was given as the Sedgwick county jail. Although supported by the testimony of the alleged coat salesman and by defendant’s fiancee, the jury chose, as it was entitled to, to reject defendant’s explanation. Defendant with two companions was shown to have been in the cleaning shop on the afternoon before the burglary inquiring about the cost of cleaning coats and whether any coats were for sale. He was also shown to have been previously convicted of burglary and larceny. The instruction complained of was appropriate and was not rendered inapplicable by the fact either that only nine of approximately thirty stolen garments were found in defendant’s possession or that possibly someone else may also have participated with defendant in the burglary. No error appears in defendant’s conviction. The judgment is affirmed. APPROVED BY THE COURT.	[ 80, -24, -3, 61, 24, 96, 42, -8, 65, -75, 51, -13, 39, -62, 5, 107, -102, 125, 85, 97, -48, -73, 19, -45, -10, -102, -109, -123, -65, 75, -27, -3, 77, 112, -62, -11, 70, -120, -57, 92, -118, 5, 56, -61, -15, 98, 36, 40, 54, 11, -15, 30, -13, 35, 26, -53, 41, 44, 75, 61, 112, -8, -69, 15, 111, 22, -77, 36, -104, 7, 120, 44, -100, 49, 0, -24, 113, -74, -122, 116, 79, 11, -116, 102, 66, 32, 13, -17, -24, -127, 46, 115, -67, -89, -104, 72, 73, 45, -41, -99, 116, 54, 38, -4, -9, 22, 31, 108, 5, -33, -44, -109, -87, 32, 54, -72, -33, -91, -80, 113, -50, -94, 93, 85, 80, -69, -116, -75 ]
The opinion of the court was delivered by Allegrucci, J.: Donald Boomgaam appeals the district court’s disposition of his motion to modify his sentence. The Court of Appeals reversed the district court and remanded the case in an unpublished opinion, State v. Boomgaarn, No. 65,517, filed May 3. 1991. We granted the State’s petition for review. Defendant Donald Boomgaarn entered a plea of guilty to two counts of indecent liberties with a child in violation of K.S.A. 1990 Supp. 21-3503. The district court sentenced him to concurrent terms of not less than 5 nor more than 15 years. After being evaluated at the State Reception and Diagnostic Center (SRDC), Boomgaarn filed a motion seeking modification of his sentence to a period of probation. The SRDC report recommended probation. The pertinent portion of the report states the following: “The team feels that Mr. Boomgaarn has shown a number of problems that probably will not get better unless there is some structure in his life and a message that he has to grow up is driven strongly into him. All together though, incarceration might be detrimental on [him] in the long-run. We are therefore advising a highly structured probation with an initial step of inpatient treatment for his drug and alcohol problems. He should after that be placed in a halfway house, and the time used to help him obtain a GED, and vocational training or work, whichever is more practical. He will need to develop a supportive, predictable relationship with his parole officer. He should stay engaged in N.A.’s and A.A.’s all throughout his probation period.” Following a hearing, the district court reduced the sentence to concurrent terms of not less than 4 nor more than 10 years. There is no dispute that the applicable statute is K.S.A. 1989 Supp. 21-4603(3). It states in pertinent part: “[A]t any time within 120 days after a sentence is imposed . . . the court . . . shall modify such sentence if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized'and that the welfare of the inmate will not be served by such modification.” The parties agree that, where the SRDC report recommends modification of the sentence, the court is required to do one of two things — modify the sentence or find that modification will jeopardize public safety and will not benefit the inmate. Boomgaarn argues that, if the court modifies the sentence, modification must be in accordance with the SRDC report recommendation. The Court of Appeals agreed, holding that the trial court must follow the SRDC recommendation for probation unless it states on the record that a defendant’s release would jeopardize the public safety and fail to benefit the defendant. K.S.A. 1989 Supp. 21-4603(3) allows a trial court the alternative of declining to adopt the SRDC’s recommendation to modify the sentence where it “finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification.” At the conclusion of the hearing on defendant’s motion to modify, the district court said: “Very well. Well, the Court recalls this case and when Mr. Boomgaam was before this Court. The Court has reviewed the report from the State Reception and Diagnostic Center. The defendant’s attitude when he personally was before the Court seems to be reflected in the SRDC report under section roman numeral three of the SRDC report. They make the observation that Mr. Boomgaam seems to be oblivious to the consequences to the victim of the offense even though he says that he is sorry for what he did, and that same paragraph there goes on to comment later in the text of the report that he acts like he didn’t know what the law was. He accepts at this point to have done wrong only on the account of the fact that the law says so. It’s the Court’s recollection that Mr. Boomgaam did very little to show that he had any remorse in his heart at the time this sentence was imposed. “On page seven of the report there’s a comment that Mr. Boomgaam had a superficial somewhat matter-of-fact approach to his offense, devoid of major recognition for his improper nature and of any actual sense of guilt or sorrow. On that same page of the report the observation is made that Mr. Boomgaam’s judgment is characterized in its problem assessing by use of a great deal of rationalization and it seems to be unable to discern subtleties and nuances. He tends to be somewhat simplistic and he shows poor insight and lack of imagination. “Under the section roman numeral four the team summary on page 8 of the report the finding is made that Mr. Boomgaarn’s approach to the present offense left a lot to be desired. However, we do not have enough data to diagnose him with any special sexual perversion, and the Court recognizes that. The Court realizes that Mr. Boomgaam is a young man, that he has his entire life ahead of him. That at 23 years of age he’s got to take ahold of his own life because he alone will control his destiny as to whether he ends up in the penal system on frequent occasions or whether he becomes a productive member of society and becomes a credit to himself and his family. I recognize all of these factors, but the Court still recognizes the fact that the criminal justice system is there to protect society and it’s the opinion of this Court that Mr. Boomgaam has exhibited very little concern for the seriousness of the offense that he has committed. So I’m going to deny the request for probation at this time. The Court will modify Mr. 'Boomgaam’s sentence and he’s presently sentenced to a minimum term of five years and a maximum of 15 pursuant to penalties provided for class C felonies. The Court is going to go ahead and modify the sentence for each of the class C felonies that he was found guilty of in violation of K.S.A. 21-3503 and sentence the defendant to a minimum term of four years and a maximum term of ten years. It’s this Court’s hope that Mr. Boomgaam will avail himself of the educational and counseling opportunities that are available while he’s in the jurisdiction of the Secretary of Corrections and that he will at the time of his release be in a better position to deal with the social problems that confront young people in our society. That will be the order of the Court and I’ll ask that [defendant’s counsel] journalize that.” Defendant argues that the district court “made neither a finding that the appellant is a threat to the public safety nor that he would not benefit from probation.” The State contends that the district court made the proper findings and that there was sufficient evidence before the court to support them. The State also suggests that there was some burden on defendant to show that probation would be warranted, but no authority was supplied and none has been located for this proposition. It has no merit. A fair reading of these remarks made by the district court at the conclusion of the hearing on defendant’s motion to modify his sentence reveals that the court did consider the public safety and the welfare of the defendant. It also reveals that the court found that neither would be well served by reducing the sentence to a period of probation. With regard to the welfare of the defendant, the district court expressed its recognition of the defendant’s current status and the need to provide him with an environment conducive to personal growth: “The Court realizes that Mr. Boomgaarn is a young man, that he has his entire life ahead of him. That at 23 years of age he’s got to take ahold of his own life because he alone will control his destiny as to whether he ends up in the penal system on frequent occasions or whether he becomes a productive member of society and becomes a credit to himself and his family.” Continuing this train of thought, the district court expressed its belief that the availability of services to defendant during his incarceration could benefit him. The district court concluded the hearing by expressing its hope that Boomgaarn will avail himself of the educational and counseling opportunities that are available while he is in the jurisdiction of the Secretary of Corrections and that he will at the time of his release be in a better position to deal with the social problems that confront young people in our society. With regard to public safety, the district court noted that SRDC staff members “make the observation that Mr. Boomgaarn seems to be oblivious to the consequences to the victim of the offense.” It noted that the defendant’s lack of remorse or recognition of his wrongdoing had impressed both the court and SRDC staff. The district court concluded that “the criminal justice system is there to protect society and it’s the opinion of this Court that Mr. Boomgaarn has exhibited very little concern for the seriousness of the offense that he has committed. So I’m going to deny the request for probation at this time.” The district court is not required to utter any particular words in order to comply with K.S.A. 1989 Supp. 21-4603(3). The above-quoted statements by the district court show that whether or not the safety of the public would be jeopardized had been considered. They also show that whether or not the welfare of the inmate would be served had been considered. And they show that the court’s disposition of the sentencing request was based on the findings it had made pursuant to the statute. We note that the legislature has amended this statute. K.S.A. 1990 Supp. 21-4603(4)(a) makes the following requirement: “[Wjithin 120 days after a sentence is imposed . . . the court . . . shall modify such sentence if recommended by the Topeka correctional facility— east unless the court finds and sets forth with particularity the reasons for finding that the safety' of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification. ” (Emphasis added.) A more difficult question would be presented if the adequacy of the district court’s remarks was to be measured by the current statute. By the standard of the applicable statute, however, we find that the remarks are adequate. They leave no room for doubt that the district court considered the relevant issues and found that neither public safety concerns nor the defendant’s welfare would benefit from modifying the sentence. This is not a case in which the district court failed to articulate the considerations and conclusions which motivated it to depart from the SRDC recommendation. Thus, the district court was not required to modify the sentence pursuant to K.S.A. 1989 Supp. 21-4603(3). The judgment of the Court of Appeals reversing the district court and remanding the case to the district court is reversed. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Six, J.: This first impression criminal case relates to a claim of outrageous police conduct rising to the level of a due process violation of the 5th Amendment. The trial court found the conduct of the police to be egregious, outrageous, and “entrapment per se” and dismissed the complaint. The State appeals. Our jurisdiction is under K.S.A. 22-3602(b)(1). Bryan E. Nelson was charged with possession of cocaine in violation of K.S.A. 1990 Supp. 65-4127a. In our view, the police conduct was not outrageous, egregious, or entrapment per se. The conduct stopped far short of constituting a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the due process clause of the 5th Amendment. The defense of outrageous police conduct as a denial of due process was misapplied and the complaint should not have been dismissed. We reverse the trial court and remand the case for reinstatement of the complaint. Facts Nelson telephoned Penny J. Boettcher for the purpose of purchasing an “eight-ball” of cocaine. Nelson and Boettcher agreed to meet the next morning at a restaurant. Nelson gave Boettcher $300 at the scheduled meeting. The two decided to meet again that afternoon so that Boettcher could deliver the cocaine. Prior to the initial meeting with Nelson, Boettcher met with Frank Ogeda and Doug Hanson. Ogeda was Boettcher’s apartment manager. (Nelson claims Ogeda was a police informant.) Hanson was a prospective cocaine buyer and an undercover narcotics policeman. Ogeda introduced Hanson to Boettcher. Neither Boettcher nor Ogeda knew of Hanson’s undercover activity. Hanson asked Boettcher if she would sell him a quarter gram of cocaine. Boettcher agreed to provide Ogeda with the cocaine Hanson wanted. Hanson learned that Boettcher was to meet an attorney (Nelson) that day to receive payment for cocaine. Hanson was present when Boettcher secured cocaine for Nelson and himself. The information on Boettcher’s purchase and planned resale was passed on to other law enforcement officers. Boettcher was running late for her afternoon meeting with Nelson. She telephoned Nelson’s office and left a message that she would meet him at 7:00 p.m. When Boettcher arrived to meet Nelson that evening, he was not there. Boettcher called a mutual acquaintance, Dave Slater, to find out how to contact Nelson. Slater did not answer his phone, and Boettcher left a message on his tape recorder. After the phone call, Boettcher returned to her apartment. Boettcher was stopped by law enforcement officers on the way to her apartment. She was arrested for the sale of cocaine to Hanson. Police removed the cocaine she was to deliver to Nelson from her purse. After her arrest, Boettcher was transported to the Johnson County Sheriff’s Department. . Boettcher told police that she was to meet Nelson at 7:00 p.m. that evening to deliver an “eight-ball” of cocaine. Boettcher said she was late and, apparently, Nelson had left before she arrived. Boettcher agreed to finish her prearranged cocaine delivery to Nelson. Boettcher and Nelson decided, through Slater, to meet later the same evening at a restaurant. Boettcher, in the company of Detective Micháel Kill, drove to the restaurant. Kill placed the cocaine originally taken from Boettcher and a tape recorder in Boettcher’s purse. Nelson was waiting for Boettcher at the restaurant parking lot when she and Kill arrived. Kill told Boettcher to do what she normally would do when she met with Nelson. Boettcher walked over to Nelson’s car. Once she was in the car, Nelson held out his hand and Boettcher dropped the “eight-ball” of cocaine in his hand. After a short conversation, she walked back to her car. Nelson attempted to leave the area but was stopped by police. The “eight-ball” of cocaine was found in an air vent next to the base of the console in his car. During the search, police also recovered two vials which contained powder residue. The powder residue in one vial was later determined to be cocaine. The other vial contained an insufficient amount of residue to test. Boettcher first met with Nelson at Slaters house six months before Nelson’s arrest. The purpose of the meeting was to discuss the sale of cocaine from Boettcher to Nelson. Kill, who had Boettcher under surveillance, observed the initial noon meeting between Nelson and Boettcher the day of Nelson’s arrest. When Boettcher told Hanson of her planned sale to Nelson, Hanson informed law enforcement officers. Law enforcement officers already had Nelson’s name due to Kill’s prior observance. Police surveillance of Nelson’s residence commenced at 6:00 p.m. the night of his arrest. The record reflects a dispute as to the packaging of the cocaine. Boettcher said that the cocaine had been repackaged when it was returned to her to deliver to Nelson. Kill stated that it was packaged exactly as he had received it from Boettcher. Outrageous Conduct The trial court ruled that the conduct by police in this case was so egregious and outrageous that it constituted a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the due process clause of the 5th Amendment. See United States v. Russell, 411 U.S. 423, 432, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). Dismissal of a complaint based upon the due process grounds of outrageous government conduct is subject to review de novo as a question of law. United States v. Bogart, 783 F.2d 1428, 1431 (9th Cir. 1986). See U.S. v. Simpson, 813 F.2d 1462, 1470-71 (9th Cir.), cert. denied 484 U.S. 898 (1987); Annot., 97 A.L.R. Fed. 273, 285. The foundation for the defense of “outrageous conduct” is an offshoot of entrapment and is found in Justice Rehnquist’s dictum in United States v. Russell: “[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” 411 U.S. at 431-32. In Russell, an undercover narcotics agent went to Russell’s home and met with Russell and two other people. The agent’s role was to locate a laboratory where it was believed that methamphetamine was being manufactured. The agent told Russell that he represented an organization that was interested in controlling the manufacture and distribution of methamphetamine. The agent made an offer to supply Russell with a chemical necessary for the manufacture of methamphetamine in return for one-half of the drugs produced. This offer was made with the condition that the agent be shown where the laboratory was. During the agent’s contact with Russell and the other two individuals involved, the agent found out that they had been manufacturing the drug. He was also given a quantity of methamphetamine by one of the individuals. Shortly after the initial meeting, the agent was allowed to view the laboratory. At the laboratory, the agent observed an empty box of the same chemical he had agreed to provide to Russell. 411 U.S. at 425. The agent provided Russell the promised chemical necessary to manufacture the methamphetamine. As agreed, the agent was given one-half of the manufactured drugs. Russell kept the remainder. 411 U.S. at 426. About a month after the incident, the agent made contact with Russell and others involved, inquiring if they were still interested in the “business arrangement.” He was told by one of the individuals that they were interested but that they had recently obtained two additional bottles of the chemical that the agent previously had provided them. The agent obtained a search warrant for the residence. Evidence of methamphetamine production was confiscated. 411 U.S. at 426. Russell was convicted of three counts of having unlawfully manufactured and possessed methamphetamine and of having unlawfully sold and delivered that drug in violation of federal statutes. On appeal, the conviction was reversed solely for the reason that an undercover agent supplied an essential chemical for manufacturing the methamphetamine which formed the basis for Russell’s conviction. The Ninth Circuit had concluded that as a matter of law “ ‘a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.’ ” 411 U.S. at 424 (quoting United States v. Russell, 459 F.2d 671, 673 [9th Cir. 1972]). The United States Supreme Court reversed the Ninth Circuit. The Supreme Court held in Russell that the law enforcement conduct stopped “far short of violating that ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.” 411 U.S. at 432. In doing so, the Russell court noted that “in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation.” 411 U.S. at 432. The issue of “outrageous conduct” as a violation of due process was also addressed in Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976). Hampton was convicted of two counts of distributing heroin. Hampton became acquainted with a government informant. During a conversation between the two, Hampton told the informant that Hampton needed money and knew where to get some heroin. The informant told Hampton that buyers could be found. Later, the informant contacted DEA agents. On two different occasions, Hampton, in the company of the government informant, sold heroin to the DEA agents. Hampton’s story differed. He testified that the informant had supplied him with simulated heroin which Hampton did not intend to sell. 425 U.S. at 485-87. The United States Supreme Court once again rejected a due process claim. 425 U.S. at 490-91. In doing so, the Court reaffirmed the entrapment rules of Sherman v. United States, 356 U.S. 369, 2 L. Ed. 2d 848, 78 S. Ct. 819 (1958), and Sorrells v. United States, 287 U.S. 435, 77 L. Ed. 413, 53 S. Ct. 210 (1932). A defendant who is predisposed to commit a crime cannot claim entrapment. The Court in Hampton observed that where predisposition exists, the defense of denial of due process by abusive governmental conduct is also unavailable. 425 U.S. at 488-91. See Annot., 97 A.L.R. Fed. at 279. Although the due process defense is referred to in Hampton, the defense was not applied. The defense has been applied on occasion by lower federal courts. See Annot., 97 A.L.R. Fed. at 279. The application of the due process defense as a basis for dismissing Nelson’s complaint is presented to us as one of first impression. We note that the Tenth Circuit first considered the defense in United States v. Gentry, 642 F.2d 385 (10th Cir. 1981). Gentry was convicted in Kansas of conspiracy to possess with intent to distribute methamphetamine sulfate. He claimed the conduct of DEA agents was so outrageous that it violated his rights of due process, citing United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). 642 F.2d at 387-88. Gentry and others were engaged in an ongoing business to manufacture and sell methamphetamine sulfate. Gentry was introduced to DEA agents through a government informant who had previously purchased methamphetamine sulfate from Gentry. During the next several months there were many conversations and contacts between Gentry and the informant and a DEA agent. On at least one occasion, the DEA agent furnished Gentry with a chemical necessary for the manufacture of methamphetamine sulfate and on another occasion Gentry ordered chemicals and equipment from a storefront operation run by DEA. DEA agents delivered the equipment to Gentry and even offered technical advice. 642 F.2d at 386-87. In rejecting the due process defense, the Tenth Circuit held that Gentry was involved in an existing drug manufacturing operation prior to the investigation and participation of government agents. 642 F.2d at 387-88. See United States v. Rivera, 778 F.2d 591, 598 (10th Cir. 1985), cert. denied 475 U.S. 1068 (1986); United States v. Warren, 747 F.2d 1339, 1343 (10th Cir. 1984); and Annot., 97 A..L.R. Fed. at 288-93. During oral argument before this court, counsel for Nelson was asked to cite his “best cases.” Counsel responded with United States v. Bogart, 783 F.2d 1428, and U.S. v. Gardner, 658 F. Supp. 1573 (W.D. Pa. 1987). The Bogart court recognized the claim of outrageous governmental conduct as a particularly fact-oriented area of the law and remanded the case for findings of fact on the nature of, and motivation for, the government’s conduct. 783 F.2d at 1438. Compared to the government involvement in Bogart and Gardner, the police work in the case at bar represents an example of competent professional law enforcement. United States v. Brown, 635 F.2d 1207 (6th Cir. 1980), sets out four factors to consider in determining whether government conduct is so outrageous as to violate due process. The factors are: (1) the type of activity under investigation; (2) whether the government instigates the criminal activity in question or whether it infiltrates a preexisting criminal enterprise; (3) whether the government directs or controls the activities or merely acquiesces in their criminality; and (4) the causal relationship between the challenged government conduct and the commission of the acts for which defendant stands convicted. 635 F.2d at 1213. The Brown court began its analysis by announcing the uniformly accepted rule that “the use of . . . informants to infiltrate criminal enterprises is a ‘recognized and permissible means of investigation.’ [Citations omitted.] This proposition remains true even though the informant or government agent engages in some criminal activity or supplies something of value to the criminal enterprise.” 635 F.2d at 1212-13. Although the type of activity under investigation in Brown involved an interstate burglary ring, the Brown court recognized that the use of informants is especially necessary in the investigation of drug-related offenses. 635 F.2d at 1213. “ ‘[Cjontraband offenses . . . are [especially] difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding narcotics traffic. . . . Enforcement officials must be allowed flexibility adequate to counter effectively such criminal activity.’ ” Brown, 635 F.2d at 1213 (quoting Hampton, 425 U.S. at 495 n.7 [Powell, J., concurring]). Without the use of Boettcher as an informant, the police in the case at bar would not have been able to detect the criminal activity in which Nelson was actively involved. There is no showing that the government instigated any criminal activity. The “cocaine deal” was fully operative when Boettcher was arrested. After her arrest, Boettcher’s participation was in finishing the preconceived plan she and Nelson had con cocted for delivery of the cocaine. The government did not instigate any of the activity nor direct or control the criminal activity in question. In the case at bar, police were presented with information that Nelson was involved in an illegal drug transaction. In order to apprehend all involved in this criminal activity, Boettcher was allowed to consummate her prearranged cocaine deal with Nelson. We hold, based on the application of the Brown factors to the facts of this case, the defense of denial of due process by outrageous police conduct is unavailable. The record demonstrates an abundance of evidence of Nelson’s predisposition to possess cocaine and of his willing participation in the criminal act for which he was charged. Nelson is not entitled to the defense of outrageous government conduct. Entrapment Per Se Counsel for Nelson, during argument before the trial court on the motion to dismiss the complaint, stated: “Now for purposes of this motion, Your Honor, we are not alleging entrapment, as I believe the Court is aware. We are alleging government misconduct based upon a violation of the Due Process Clause of the Fifth Amendment.” In dismissing Nelson’s complaint, the trial court announced the alternative theory that the conduct of the police was entrapment per se. We have recognized that the defense of entrapment is not available when a predisposition for commission of the crime is shown and the opportunity to consummate the crime is afforded by law enforcement officers. State v. Jordan, 220 Kan. 110, 116, 551 P.2d 773 (1976); K.S.A. 21-3210. Nelson’s predisposition is undisputed. The complaint should not have been dismissed. 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The opinion of the court was delivered by Herd, J.: Plaintiff David M. Arnold brought this civil action against the owner of a Wichita television station, S.J.L. of Kansas Corp., formerly known as the Kansas State Network, Inc., claiming breach of his employment contract. The facts out of which this controversy arose are as follows. In 1978, Arnold was employed as a photographer for WCPO, a television station in Cincinnati, Ohio. He had previously worked in Wichita for two months under Ron Williams, the chief photographer at KARD-TV, Channel 3. In late 1978, Williams called Arnold on several occasions about returning to work for KARD TV. Arnold was not interested until Williams told Arnold that he, Williams, intended to transfer to a planned production department in June 1979, and at that time Arnold would be promoted to chief photographer. The promise of ultimately getting the chief photographer job was important to Arnold because he would be moving to a smaller television market and taking a cut in salary. While in Cincinnati, Arnold had acquired special knowledge and skills in using live microwave broadcasting known as electronic news gathering (ENG). The news director for KARDTV, John Denney, was anxious to obtain Arnold’s expertise. Arnold also had discussions with Denny about taking a photographer position and then stepping into the chief photographer job when Williams changed positions. Arnold asked Denney for some written confirmation of their agreement. At trial Arnold produced an undated letter signed with Denney’s name that stated in pertinent part: “Dave, “The offer of employment KARD-TV has made to you includes the following: “You will be the assistant chief photographer, and at such time that the chief photographer should leave the employ of KARD-TV news department, you will be named chief photographer.” Williams testified the letter accurately represented the agreement between KARD-TV and Arnold. Denney, however, denies ever writing or signing the letter produced by Arnold, as does Williams. Thomas Mayhill of the Wichita Police Department, a hand writing expert, testified Arnold did not sign the letter. Mayhill could not conclusively state whether Denney had signed the letter, but he could not eliminate him as a possible signatory. The news director at the time of trial could not find a copy of the Denney letter in Channel 3’s files. Arnold accepted the staff photographer job on the basis of his conversations with Williams and Denney and moved to Wichita. He began work as a staff photographer on March 12, 1979. Arnold testified he was free to leave Channel 3 at any time and nothing required the television station to keep him as an employee. Williams’ proposed transfer into production, however, did not materialize and he remained employed as the chief photographer until July 5, 1989, when he voluntarily terminated his employment with Channel 3 and went to work elsewhere. In 1980, KARD-TV was sold and the station FCC license was changed. The station became KSNW. Al Sandubrae replaced Denney as news director. When Arnold told Sandubrae of the agreement Arnold had made with Williams and Denney upon accepting a job with KARD-TV, Sandubrae replied that he was not responsible for the promises of prior owners. Over the years, Arnold mentioned his employment agreement to each new news director and each new general manager. In 1988; KSNW was sold to S.J.L. When Williams actually left Channel 3 in 1989, Arnold and three other candidates were considered for the position of chief photographer. Bob Yuna, the news director, did not consider the conditions under which Arnold was hired relevant to the promotion. Ultimately, Ted Lewis, another Channel 3 photographer, was appointed to the position because of his outstanding leadership qualities. Williams agreed with Yuna on the selection of Lewis as the new chief photographer. Arnold testified he had remained in Wichita after being denied the promotion because he was divorced in 1987 and wanted to be close to his family. In November 1989, Arnold filed this breach of contract suit against S.J.L. and requested lost wages, past and future. Arnold’s base salary was $22,880 per year plus $6,000 to $8,000 for overtime. When Williams left Channel 3 he was earning $32,000 annually. When promoted to the position of chief photographer, Ted Lewis was given a yearly salary of $36,000. Arnold testified he planned to work another 21 years. Before trial, S.J.L. filed a motion for summary judgment, which was denied. The suit was tried to a jury, which found for Arnold and awarded him $126,000 in damages. Following the denial of S.J.L.’s motion for judgment notwithstanding the verdict, new trial, or remittitur, S.J.L. appealed. S.J.L. first argues that Arnold’s contract cause of'action is barred by the statute of limitations. In order to determine whether that is true, we must first look at the terms of the contract and determine when Arnold’s cause of action arose. In late 1978, Arnold agreed to accept the job of staff photographer at KARD-TV on the condition that he would be promoted to the position of chief photographer in June 1979 when Williams moved to the station’s planned production department. By 1980, it became apparent that Williams was not going to vacate the chief photographer position. In addition, the station was under new ownership. The new news director told Arnold at that time he did not feel bound by his predecessor’s agreement. Arnold contends his employer did not breach the agreement until 1989 when Lewis was hired to replace Williams as chief photographer. S.J.L., however, argues it is unreasonable to interpret the contract to mean Arnold’s promotion could be postponed for a decade, or longer, as long as Williams remained the chief photographer. A basic rule of contract construction is that the terms of a contract must be given a reasonable meaning. We have stated: “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 pertinent provisions and never be determined by critical analysis of a single or isolated provision.” Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, Syl. ¶ 3, 519 P.2d 646 (1974). We find it is unreasonable to construe the employment agreement to mean Arnold’s employer made a permanent commitment to appoint Arnold to chief photographer no matter when or under what circumstances Williams might vacate that position. The interpretation proposed by Arnold is contradicted by his own admission that he could quit or be fired at any time. If his employer was permanently committed to promoting him it would mean his employer could not terminate Arnold until he had become chief photographer. The letter produced by Arnold does not specify a date for his promotion. Instead it states “at such time that the chief photographer should leave the employee of KARD-TV news department, you will be named chief photographer.” Another basic principle of contract construction is that where a contract does not specify the time of performance or for the occurrence of a necessary event, a reasonable time will be implied. In Marsh v. Brown-Crummer Inv. Co., 138 Kan. 123, 23 P.2d 465 (1933), the de fendant sold bonds to the plaintiff and orally agreed to repurchase the bonds in the future at face value with interest, ■ upon the demand of plaintiff. This court held this was not a permanent commitment to repurchase, even though no time limit was specified. Instead, the commitment was implied to extend for a reasonable time.. What is a reasonable time is usually a question of fact to be determined by the jury. Rymph v. Derby Oil Co., 211 Kan. 414, 418, 507 P.2d 308 (1973); Marsh, 138 Kan. at 130. However, if there is no dispute as to the facts as in the case currently under consideration, the issue of what is reasonable becomes a question of law. In Marsh, we determined as a matter of law that a reasonable time to demand the repurchase would not exceed the three-year limitations period. 138 Kan. at 130-31. In other words, three years was a reasonable time within'which to exercise contractual rights based upon the oral contract in the situation presented. Arnold argues Williams’ move out of the news department was a condition precedent beyond the control of his employer and, therefore, the delay in the occurrence of the condition could not trigger the statute of limitations. It is true that if a contract contains a condition precedent the condition must occur or be performed before the contract takes effect and is enforceable. See Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604, Syl. ¶ 2, 647 P.2d 1274 (1982); Wallerius v. Hare, 194 Kan. 408, 412, 399 P.2d 543 (1965). However, none of the evidence in this case indicates Williams’ employment status was not within the employer’s control. The employer could have gone ahead and promoted Williams to the production department, or he could have been fired since he was an employee-at-will. In addition, early in Arnold’s employment, KARD-TV could not have avoided its contractual obligations by claiming the contract was impossible to perform. In Brown v. Cruse, 90 Kan. 306, 133 Pac. 865 (1913), we held that where a party owing money has voluntarily disabled himself from complying with a condition he becomes at once liable. 90 Kan. at 307. Furthermore, if the contract is silent as to time of performance, the law implies performance shall occur within a reasonable time. 90 Kan. at 308. Applying these principles to the controversy at bar, we find Arnold’s claim is barred by the statute of limitations. By 1980, Channel 3 had not moved Williams out of the news department and Arnold was aware the new owner of Channel 3 did not consider itself bound by Arnold’s employment agreement. Arnold admits he accepted the job at KARD-TV based upon his telephone conversations with Williams and Denney, not the letter produced at trial and that he could quit or be terminated at any time; thus, he was an employee-at-will. Therefore, Arnold should have brought his breach of contract claim no later than five years from the time it became apparent his employer was not going to honor the agreement (1980), in accordance with K.S.A. 60-511. Since this disposes of the case, we need not discuss the remaining issues. The judgment of the trial court is reversed and judgment entered for appellant.	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The opinion of the court was delivered by Six, J.: This is a summary judgment case flavored by a phantom truck driver motioning another motorist into a left turn through an intersection in Olathe, Kansas. The plaintiffs insurance carrier under the uninsured motorist provision of plaintiff s policy is the defendant/appellee. The propriety of granting summary judgment to the insurance carrier is the issue for resolution. Jay D. Dawson filed a personal injury action against Carole A. Griffin and American Family Mutual Insurance Company (American Family). Dawson named American Family as a defendant because Griffin claimed that a phantom truck driver motioned her to turn in front of Dawson, causing or contributing to his damages. Dawson settled with Griffin, who was dismissed from the lawsuit. The trial court granted summary judgment in favor of American Family. We find no error and affirm. Our jurisdiction arises under K.S.A. 20-3018(c). The appeal was transferred to this court from the Court of Appeals. Facts Dawson and American Family adopted the following facts: “The Court finds that the following facts are uncontroverted and are controlling of the issues to be determined in this action: “1. This is a personal injury action arising from an automobile accident that occurred on February 4, 1987. “2. The collision occurred when Carole A. Griffin, allegedly operated her vehicle westbound on Santa Fe Street, and turned left onto Chester Street into the path of plaintiffs eastbound motor vehicle. “3. Plaintiff has settled his action against Carole A. Griffin and retains solely his claim against American Family for uninsured motorist protection benefits allegedly arising from the conduct of a phantom driver. “4. Plaintiff alleges ‘an unknown phantom truck driver either caused or contributed to plaintiffs damages by his negligence with reference to the said collision in the following respects: (a) Failure to keep a proper look-out; (b) Negligently waving Carole A. Griffin in front of his truck; and (c) Failure to warn.’ “5. At the intersection where the collision occurred, there are two westbound lanes, a center turn lane and two eastbound lanes. At the time of the collision, plaintiff was traveling eastbound in the far right (curb-side) lane of Santa Fe. “6. Just prior to the collision, Carole A. Griffin was in the innermost left-hand lane of westbound Santa Fe, preparing to make a left-hand turn onto Chester Street. “7. At the time of the collision, a truck was stopped in the left-hand lane of eastbound Santa Fe at the Chester intersection. “8. While waiting to make a left-hand turn, Carole A. Griffin was allegedly ‘motioned’ to make her turn by the driver of the alleged phantom truck. The following is reproduced from Griffin’s deposition testimony at pages 9 and 10: “ ‘A. Well, I was going to work and I had stopped at Chester to make my lefthand turn, and there was traffic opposite me that was backed up and I had my blinker on and I was just waiting, I wasn’t late or anything. 1 was just really going in to get some paperwork and I was just waiting for the traffic to clear, and there was a truck on the opposite side where I was that was stopped there, big green truck with big wheels, and he had motioned for me to cross and I declined. You know, I wasn’t late and I thought, well go yourself, I’m not late or anything, and I was prepared to stay there however long it took for the traffic to clear and we made eye contact again. He was kind of, I think, staring down at me, and I saw him look in his side view mirror and his rear view mirror and he motioned for me to go, like a demand, come on lady, you’ll never get across, and I thanked him arid I went, and Mr. Dawson’s car was right there, just hit me, and the truck left, and — ’ “9. The phantom truck was not physically involved in the collision between the plaintiff and Carole Griffin. “10. Carole A. Griffin did not believe that the driver of the truck was intending to make a turn. “11. After plaintiff executed a left turn from Ridgeview onto Santa Fe, he was in the righthand lane of the two eastbound lanes as he approached the scene of the collision. “.12. As plaintiff approached the scene of the collision, there was no traffic ahead of him or behind him in his eastbound lane. “13. The traffic that plaintiff remembers seeing in the left lane of the eastbound lanes is the truck at the Chester intersection. “14. The first time that plaintiff remembers seeing the truck, it was stopped in the left lane of the eastbound lanes. “15. As plaintiff, intending to proceed past a truck to 1-35, approached the truck, it remained stopped. “16. As plaintiff came up to the side of the truck, a car traveling south appeared from in front of the truck. The driver’s door of plaintiffs vehicle was about opposite to the rear bumper of the truck when plaintiff first saw the car involved in the collision. “17. At the time of the collision, the automobile of Carole A. Griffin was completely in the southernmost eastbound lane. “18. Plaintiff contacted the automobile of Carole A. Griffin right at the right front wheel. “19. As far as plaintiff knows, the truck driver drove on and disappeared after the collision.” Summary Judgment The trial court sustained American Family’s motion for summary judgment, concluding that the only reasonable inference from the wave by the phantom truck driver to Griffin was, “Go ahead. I’ll stay here.” The trial court also concluded, as a matter of law, that the phantom truck driver did not owe a duty of care to Dawson. A party seeking summary judgment bears a heavy burden. We have repeatedly stated the rules controlling summary judgment. A recent recitation is found in Hammig v. Ford, 246 Kan. 70, 72-73, 785 P.2d 977 (1990). Dawson argues that Griffin’s testimony, set forth in the trial court’s findings at paragraph 8, establishes a genuine issue of fact as to whether the phantom driver assumed and breached the duty to ascertain whether it was safe for Griffin to turn. Dawson asserts that: (1) Griffin’s testimony indicates the phantom truck driver looked in his side and rearview mirrors; and (2) the phantom truck driver’s hand motion was in the form of a demand; consequently, summary judgment is precluded. American Family responds that the phantom truck driver’s hand motion was simply a courteous act, that Griffin’s misinterpretation of the trucker’s motion, as a matter of law, should not be permitted to support a contention of the trucker’s negligence, and that K.S.A. 8-1527 creates a duty to yield the right-of-way to oncoming vehicles when making a left turn which may not be delegated. The Signaling Cases Numerous cases have addressed the motor vehicle voluntary signal-response-accident scenario. See 90 Annot., A.L.R.2d 1431. Dawson relies upon the oft quoted phrase of Justice Cardozo: “It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275 (1922) 23 A.L.R. 1425. Courts that have recognized a duty have required the plaintiff to show that the signal was intended to mean it was safe to proceed rather than merely an intention to yield the right-of-way out of courtesy. In determining whether the signaling was intended to mean that it was safe to proceed, i.e., no other cars were approaching in the crossed lanes, courts have looked at the signaler’s ability to ascertain whether it was safe to proceed. Kerfoot v. Waychoff, 501 So. 2d 588, 589 (Fla. 1987); Perret v. Webster, 498 So. 2d 283, 285 (La. App. 1986). During oral argument, Dawson’s counsel indicated his “best case” was Perret, 498 So. 2d at 286. In Perret, the Louisiana Court of Appeals upheld a jury verdict finding a signaling driver liable for injuries sustained by a third person (Perret) when the signaled driver heeded the signal and collided with Perret. In Perret, the question of whether the signaling driver assumed a duty to determine if it was safe to proceed was allowed to go to the jury. There was a question of fact whether the signaling driver was in a position tci ascertain whether it was safe to proceed. A passenger in the bus provided independent testimony that the signaling bus driver looked in his side view mirror. According to the passenger, who was seated behind the driver, the bus stopped for a few minutes at the comer of DeGaulle (the street the bus was on) before turning onto Sandra (the side street defendant Webster was on). While there, the bus driver signaled a “maroon colored car” (the Webster car) to go ahead. This act took a few minutes, however, because the driver did not immediately move forward and, consequently, Kennedy (the bus driver) made several more motions with his head and hand signaling Webster to proceed. Webster testified that the bus driver motioned Webster to continue across DeGaulle in order for the bus to turn to the right onto Sandra. American Family relies primarily on Harris v. Kansas City Public Service Co., 132 Kan. 715, 297 Pac. 718 (1931); Kerfoot v. Waychoff, 501 So. 2d 588; Government Emp. Ins. Co. v. Thompson, 351 So. 2d 809 (La. App. 1977); and Van Jura v. Row, 175 Ohio St. 41, 191 N.E.2d 536 (1963). In Kerfoot, the Florida Supreme Court cited numerous “signal” cases and stated: “We do not accept petitioner’s contention that the trend is to impose liability on the signaling driver. We read the cases to mean that whether liability is determined as a matter of law is an issue resolved case by case, based on unrefuted facts of the vehicles’ positions, the parties’ conduct, and a reasonable interpretation of the signal under the circumstances. “In the instant case, the signaling driver, Severson, was in an almost impossible position to determine if the adjacent lane was clear of motor vehicles. Severson’s own lane was full of traffic, and Kerfoot was approaching from the rear in an adjacent lane. The turning driver, in the instant case, was in fact facing the oncoming traffic. Under these facts, Severson, as the signaling driver, could not determine the status of traffic in the outside northbound lane.” 501 So. 2d at 589. The Kerfoot court limited its holding to the facts presented: “Our holding in this case is limited to its circumstances and should not be broadly construed to hold that drivers who give gratuitous signals to other drivers cannot be guilty of negligence for causing an accident.” 501 So. 2d at 590. In Harris, a 1931 opinion of this court, a pedestrian, Harris, was injured when she was struck by a streetcar at the intersection of Twelfth and Walnut in Kansas City, Missouri. Walnut runs north and south, and Twelfth runs east and west. Double streetcar tracks were on both streets. She was. on the southwest comer of Twelfth and Walnut and desired to cross to the north side of Twelfth. Several streetcars were standing on the south railway of Twelfth Street headed eastward. One of these cars was projected into Walnut. Behind this car, a second car was standing so that its front was in the sidewalk lane. A motorman on the second car nodded his head and beckoned Harris to cross. She started to cross, and passed in front of the second streetcar, behind the first. When she stepped beyond these two streetcars, she was stmck by another streetcar headed west on the north track. Harris alleged the motorman was negligent by failing to warn her of the approaching westbound streetcar. The jury found for Harris. We reversed, stating: “His [the motorman’s] signal to plaintiff could mean no more than an assurance that he would not start his car and catch her while she was passing between his car and the one four feet in front of it. Such was plaintiffs own testimony of what she understood by his signal. The motorman had no duty to protect her against west-bound traffic which she would have to cross the moment she passed between the east-bound street cars on the south track. The motorman was in no better position to observe the westbound traffic than she was.” 132 Kan. at 718. Harris also relied on the negligence of the motorman in the westbound streetcar that stmck her. We acknowledged the westbound car’s negligence but held Harris contributorily negligent as a matter of law, stating: “Time and again this court, and courts generally, have declared that it is negligence to undertake without due caution to cross a street upon which there is a double street-car track by passing behind a standing street car which cuts off the view of a street car or other vehicle which may be coming from the other direction.” 132 Kan. at 719. Government Emp. Ins. Co. v. Thompson, 351 So. 2d 809, involved a fact situation similar to the case at bar. Thomas was stopped in the inside southbound lane of a four-lane street waiting for traffic to clear so that he might turn left onto an intersecting street. Decuir was stopped in the inside northbound lane of traffic on the four-lane street. The northbound inside lane was backed up due to a stoplight farther north. Decuir made room and sig naled Thomas to turn left. As Thomas did so, he was struck by a vehicle operated by Prejean proceeding in the outside northbound lane. Pejean’s suit against Decuir was dismissed. On appeal, Prejean argued that Decuir was negligent in leading Thomas to believe it was safe to turn. With little analysis the Louisiana Court of Appeals disagreed, stating: “Mr. Decuir’s signal was intended to give Mr. Thomas permission to pass in front of Mr. Decuir’s stopped truck. Mr. Thomas cannot be relieved thereby of his obligation to keep a proper lookout for oncoming traffic in other lanes of traffic. His misinterpretation of Mr. Decuir’s courteous gesture cannot serve to render Mr. Decuir guilty of negligence proximately causing the ensuing accident.” 351 So. 2d at 810. Kerfoot and Harris considered whether the signaler was in a position to ascertain if it was safe to proceed. Each decision noted that the signaler was not in a position to make this determination or, at least, in no better position than the person signaled. The collision facts of Van Jura v. Row, 175 Ohio St. 41, are similar to the collision facts in the case at bar. In Van Jura, Row was driving south on the inside lane of a five-lane street (two southbound lanes and three northbound lanes). Row intended to make a left turn across the three northbound lanes to go to a restaurant. The inside northbound lane was clear. The traffic in the center northbound lane was backed up to a stoplight farther north. The driver of a large truck stopped just south of where Row wanted to turn and motioned Row to proceed. The truck obstructed Row’s ability to see the northbound outside (curb) lane. Row collided with fiires, who was northbound in the outside lane. The truck driver was not a party to the action and his identity was unknown. The jury was instructed that it could find the sole proximate cause of the accident to be the act of the truck driver who, having the right to proceed, nevertheless stopped and motioned a left turning motorist to pass in front of him. The jury found for the defendants. On appeal, this instruction was held to be erroneous. 175 Ohio St. at 43, 45. The Ohio Supreme Court noted that this traffic situation occurs everyday. The court framed the issue as follows: “Can one who is waiting to make a left turn depend upon the action of another motorist and absolve himself from liability for injury committed upon a party, by showing that he was invited to proceed in his left turn by such other motorist, who, at that time, had the right to procéed uninterruptedly in the direction in which he was headed?” 175 Ohio St. at 43. The Van Jura court quoted the following Ohio statute: “ ‘No person shall turn a vehicle . . . from a direct course upon a highway until such person has exercised due care to ascertain that the movement can be made with reasonable safety to other users of the highway . . . .’ ” 175 Ohio St. at 44. The court held that the conduct required by the statute may not be delegated to another. 175 Ohio St. at 45. American Family urges us to adopt the Van Jura rationale and cites K.S.A. 8-1527, which states: “The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.” (Emphasis added.) American Family argues that K.S.A. 8-1527 creates a nondelegable duty on the driver to yield the right-of-way. Thus, Griffin’s sole negligence caused Dawson’s injuries. We agree that the duty imposed-by K.S.A. 8-1527 cannot be delegated; however, Van Jura is riot a persuasive precedent for a total resolution of the instant case. The signaling truck driver in Van Jura was not a party in the lawsuit. Van Jura, the plaintiff, was asserting no claim against the phantom truck driver. Row, the sole defendant, was attempting to absolve himself from all liability by delegating his offensive left turn to the unidentified nonparty truck driver. In the case at bar, there was no verbal communication. In our view, any reliance on the alleged hand wave as a guaranty of safety, iri the instant case, was unjustified as a matter of law. Perhaps the trucker meant one thing and Griffin assumed another. We will never know. What we do know is this: Griffin had a nondelegable duty to yield to oncoming traffic while making a left turn; and the only reasonable and safe thing to assume from a hand wave is, “Í won’t hit you.” Other eases will present other facts and in a comparative negligence state, such as ours, each case will necessarily stand or fall on those unique facts. There may be a case where more can be safely understood from a hand wave. This, however, is not such a case. Affirmed. Abbott, J., riot participating. Terry L. Bullock, District Judge, assigned.	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The opinion of the court was delivered by Herd, J.: This case is an interlocutory appeal from tort actions brought by Wilbern Ramsey and Leola Ramsey against Henry Chism, d/b/a Chism’s Trash Service, for injuries they suffered in an automobile accident. Shelter Insurance Companies (Shelter), the Ramseys’ automobile liability insurer, was joined as a party defendant under the underinsured motorist provision of K.S.A. 1990 Supp. 40-284. Shelter appeals the trial court’s ruling that it is a proper party to the action. The Ramsey cases were consolidated for appeal. The facts of this case are not an issue and, therefore, are briefly stated. On July 29, 1989, Heqry Chism was operating a motor vehicle which collided with an automobile driven by Wilbern Ramsey and in which Leola Ramsey was a passenger. Wilbern alleges damages of $879,889.76 and Leola claims $580,366.11 in damagés. After filing suit, the Ramseys learned Chism’s insurance coverage was inadequate to compensate them for their injuries. On November 14, 1989, the Ramseys notified Shelter of Chism’s underinsured standing and advised Shelter of their intent to proceed against it pursuant to K.S.A. 1990 Supp. 40-284(b) as their underinsured motorist insurance carrier. In response, Shelter informed the Ramseys it did not consider their letter an actual demand for underinsured motorist coverage because it failed to comply with the statutory requirements of K.S.A. 1990 Supp. 40-284(f) and, therefore, Shelter did not consider the 60-day period to have commenced. On December 7, 1989, the Ramseys notified Shelter of a tentative settlement offer from Chism’s insurance carrier, Travelers Insurance Company (Travelers). The settlement offer proposed a $55,700.00 payment up front and structured payments totalling $92,000 paid through January 1, 1996. Travelers’ policy provided liability coverage for a total of $125,000 per event. Shelter responded that the Ramseys’ claim for underinsured motorist benefits was premature. It also denied compliance with K.S.A. 1990 Supp. 40-284(f) based on Travelers’ failure to offer its policy limits, and because there was no indication whether the settlement offer was for Wilbern’s claim, Leola’s claim, or both claims. Shelter was subsequently notified by Travelers that two settlement offers had been proposed. Each proposal offered structured payments which exhausted its bodily injury policy limit of $125,000. Once again, Shelter informed the Ramseys it had not received proper notice and, therefore, 40-284(f) was not in effect. In addition, Shelter continued to assert that Travelers’ settlement offer failed to exhaust its total coverage and did not separate the claims of Wilbern and Leola. Thereafter, the Ramseys filed a motion to join Shelter as a contingently necessary party. Shelter argued the ruling in Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199 (1985), prevented an underinsured motorist insured from forcing an underinsured motorist insurer involuntarily into a tort action. The trial court determined that Travelers’ settlement offer and its assertion that the offer exhausted the applicable policy limits removed the case from the holding of Haas v. Freeman. In addition, the trial court found that the Ramseys were not required to obtain a judgment against the tortfeasor, Chism, in order to join their own insurance carrier for resolution of issues concerning underinsured motorist coverage. Shelter appeals. The issue presented in the case at hand is whether an insured is precluded from joining his underinsured motorist carrier in an action against the underinsured tortfeasor when liability and damages are not at issue but contract issues are in dispute. The Ramseys contend the procedure established by Haas does not apply to them because Chism’s insurance carrier has offered to settle the claim. Thus, there is no disputed issue concerning liability or the amount of damages. The Ramseys allege it is inequitable and a violation of substantial justice to require them to bring suit against Chism and obtain a judgment before they can bring a second suit against Shelter to recover underinsured motorist benefits. The Ramseys further allege they are precluded from accepting Travelers’ settlement offer because Shelter has already asserted that acceptance would violate the requirements of 40-284(f) and, therefore, waive any contract obligations that may have existed. Thus, they contend the contract issues must be adjudicated in the same lawsuit as the damages and liabilities suit in order to avoid the trial costs of a second lawsuit. The Ramseys suggest the trial court could decide the issues pertaining to Shelter outside the presence of the jury to prevent any possibility of jury prejudice arising from the mention of insurance. Then, if the trial court ruled Shelter was correct, in that Travelers failed to offer its policy limits or that improper notice was given to Shelter, the court could dismiss Shelter from the action and the Ramseys would reject Travelers’ offer and try the negligence issue. If, on the other hand, Shelter was wrong, the Ramseys argue they could accept Travelers’ settlement offer and proceed against Shelter for underinsured motorist benefits, still within the same lawsuit. Shelter contends it has exercised its statutory option not to intervene in the tort action. Therefore, the Ramseys must complete their tort action before they pursue any contract claims and are prohibited from mixing the issues in a single lawsuit. Shelter asserts that if the Ramseys settle with Travelers for less than the policy limits they will not be entitled to underinsured motorist benefits. However, if the Ramseys settle for Chism’s policy limits they may file a claim against Shelter according to the procedures established by 40-284(f). Finally, Shelter contends, in the event of settlement, Chism’s liability should be determined in the contract litigation rather than by the settlement provisions. In 1981, the Kansas Legislature amended K.S.A. 40-284 (Weeks) to require that all automobile liability insurance policies include uninsured and underinsured motorist coverage. The amended statute allows the insured to recover from its own insurance carrier the amount of damages for bodily injury or death which the insured is legally entitled to from the owner/operator of another motor vehicle. The insured’s recovery, however, is limited to the amount of damages which exceeds the tortfeasor’s liability policy limits and by the insured’s underinsured motorist coverage. K.S.A. 1990 Supp. 40-284(b). In Haas v. Freeman, 236 Kan. 677, we considered the procedure an insured must employ to bring a claim for underinsured motorist benefits against his underinsured motorist carrier. In our analysis of whether an underinsured insurer could be included in an insured’s action against an underinsured tortfeasor, we examined uninsured motorist case law and concluded the insured could join his own insurance carrier in a suit against the tortfeasor when there was an issue of uninsured motorist coverage. 236 Kan. at 680 (citing Winner v. Ratzlaff, 211 Kan. 59, 65, 505 P.2d 606 [1973]). However, we also recognized distinct differences existed between uninsured and underinsured motorist claims. In Haas, we reiterated our belief that substantial justice is not provided when all issues are not tried in one lawsuit. We concluded, however, this rule could not be applied to underinsured motorist claims the same as it is applied to uninsured motorist claims. First, unlike the uninsured action, the opposing tortfeasor and his insurance carrier are actively involved in the underinsured motorist action. Second, the fact of underinsurance is an unresolved issue. Finally, we determined joinder of both insurance carriers would confuse the jury and overemphasize the insurance feature of the lawsuit. 236 Kan. at 682. Based upon the foregoing factors, we established the following procedure for an underinsured motorist claim. The underinsured must notify his insurer of an intent to invoke the underinsured motorist clause of his policy in the manner prescribed by the insurance policy. Then, unlike an uninsured motorist claim, the insurer has the option to elect to intervene in the case and become a named party or opt not to intervene, in which case no evidence of insurance would be allowed in the tort action. Under either option the insurer is bound by the judgment obtained. 236 Kan. at 683. The conflict between the Ramseys and Shelter was contemplated by this court in Haas and was the basis for rejecting the argument that joinder is preferred over multiple litigation. In Haas, we found that an underinsured motorist carrier should not be joined in the tort action where underinsurance remained an unresolved issue. 236 Kan. at 682. Underinsurance and Chism’s policy limits quite definitely remain unresolved in the present action. In addition, Chism and Travelers are active parties in the lawsuit, another reason provided in Haas for not allowing joinder. Finally, the presence of Travelers and Shelter in the same suit would naturally and prejudicially emphasize the insurance feature of this lawsuit. The distinct features of an underinsured motorist claim preclude the accomplishment of substantial justice through a single lawsuit and must allow the possibility of multiple litigation to preserve the rights of all parties involved. For these reasons, we hold Haas is applicable to the present action. The Ramseys’ argument that application of K.S.A. 1990 Supp. 40-284(f) requires all contract issues to be adjudicated in the same action as the damages and liabilities lawsuit is misplaced. K.S.A. 1990 Supp. 40-284(f) provides: “(f) An underinsured motorist coverage insurer shall have subrogation rights under the provisions of K.S.A. 40-287 and amendments thereto. If a tentative agreement to settle for liability limits has been reached with an underinsured tortfeasor, written notice must be given by certified mail to the underinsured motorist coverage insurer by its insured. Such written notice shall include written documentation of pecuniary losses incurred, including copies of all medical bills and written authorization or a court order to obtain reports from all employers and medical providers. Within 60 days of receipt of this written notice, the underinsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount.- The underinsured motorist coverage insurer is then subrogated to the insured’s right of recovery to the. extent of such payment and any settlement under the underinsured motorist coverage. If the underinsured motorist coverage insurer fails to pay the insured the amount of the tentative tort settlement within 60 days, the underinsured motorist coverage insurer has no right of subrogation for any amount paid under the underinsured motorist coverage.” The foregoing statute is concerned with the subrogation right of an underinsured motorist insurer. Thus, it does not apply to the issue presented in this interlocutory appeal. We conclude that under the authority of Haas the Ramseys are prohibited from joining Shelter as a party defendant in their tort action against Chism. Thus, we hold the trial court erred in joining Shelter as a contingently necessary party to the tort action. The judgment is reversed and this case is remanded for further proceedings consistent with this opinion.	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The opinion of the court was delivered by Allen, J. : This action was brought by the Union Pacific Railway Company to recover on three promissory notes for $720 each, executed by David Goehenour to Albert E. Warren, and by him indorsed to the Kansas Pacific Railway Company, and to foreclose a mortgage on a section of land given to secure the payment of the same. The petition alleges the indorse ment of the notes and the assignment of the mortgage by Warren to the Kansas Pacific Railway Company, and the plaintiff claims title to the notes and mortgage by consolidation with and as the legal successor of said company. The evidence introduced by the plaintiff shows that on the 26th day of January, 1880, the Kansas Pacific Railway Company was consolidated with the Union Pacific Railway Company and the Denver Pacific Railway and Telegraph Company, forming the Union Pacific Railway Company, plaintiff in this action. The indorsements on the notes appear without date, but the assignment of the mortgage, which by its terms also transfers the notes sued on, was made on the 11th of March, 1880, more than six weeks after the consolidation. The articles of consolidation were introduced in evidence, and show that the Kansas Pacific Railway Company did not at once become extinct by reason thereof, but was to continue in existence for the purpose of settling its liabilities. This provision of the articles of consolidation has been held valid by this court in the case of Whipple v. U. P. Rly. Co., 28 Kan. 474. The only parties to this action are the plaintiff and the different defendants who claim an interest in the lands. Neither Albert E. Warren nor the Kansas Pacific Railway Company is in court. There are no averments in the petition of mistake by which the assignment was made to the Kansas Pacific company instead of the Union Pacific, nor is there any statement showing that the consideration paid for the notes moved from the Union Pacific company. Under this state of the case, the plaintiff appears to have no title to the notes. This question was directly raised by the pleadings. The articles of consolidation contain no provision under which promissory notes afterward acquired by the Kansas Pacific Railway Company would pass to the plaintiff. As this is necessarily decisive of the case, we have deemed it unnecessary to closely examine the questions raised on the motion to dismiss, as well as the other matters discussed in the briefs. The judgment is affirmed. All the Justices concurring.	[ -76, 104, -80, 127, -54, 96, 42, -102, 104, -79, -89, 83, -23, -55, 0, 121, -58, 45, -31, 122, -28, -77, 6, -54, -46, -13, -15, -52, -79, -40, 100, -42, 77, 32, 74, 21, 102, -62, -63, 28, -114, 4, 41, -28, -39, 96, 52, 107, 86, 78, 113, -97, -13, 41, 24, 83, 13, 44, -19, 45, -48, -8, -117, -59, 125, 6, 49, 4, -108, 69, -56, 30, -104, -75, 1, -24, 114, -90, -106, -10, 79, -103, 8, 98, 98, 33, 52, 47, -98, -120, 46, -41, -99, -90, -80, 24, -93, 97, -74, -103, 52, 16, -121, -2, -1, 5, 29, 108, 1, -113, -74, -125, 31, 126, -98, 11, -21, -73, 48, 96, -64, -96, 93, 71, 58, -101, -113, -8 ]
The opinion of the court was delivered by Johnston, J : This action was brought by Daniel A. Pry, a minor, by his guardian, H. P. Rhodes, and his mother, Louisa Schwerdfager, as heirs at law of Albert Pry, deceased, to recover from Samuel Fry, Aaron Fry and William Weatherholt 80 acres of land in Sedgwick county, and also for damages for the wrongful detention of the same. The claim of the plaintiffs below was that Samuel Pry, the father of Albert, agreed that if Albert would take possession of the land, bring it under cultivation, and build good improvements thereon, then he, Samuel Fry, would execute to Albert a deed of conveyance for the land, and the same should become the property of Albert in fee simple ; and that, in pursuance of this agreement and gift, Albert took possession of the land, brought the entire tract under cultivation, erected thereon houses, stables, corn-cribs, and wagon-sheds, planted and cultivated orchards and hedges, fenced and otherwise improved the land, at a cost of $1,500. It is alleged that the gift was made, possession taken by Albert thereunder and improvements begun in 1878, and in 1881 he was married to.Louisa, and of this marriage Daniel A. Pry was born. They continued to occupy the premises until the death of Albert Fry, on March 26,/1884. Soon after the death of'Albert, Samuel Fry disputed the ownership of the land, and it is alleged that by subterfuge and force he removed and kept them from the possession of the premises. The case was tried with a jury, and a finding made in favor of the defendants in error, awarding thefn the land and $450 as damages for the wrongful detention of the same. The principal contention in this court is, that the proof is not sufficiently strong and clear to warrant the conclusion that an effectual gift of the land had been made. We find, however, that this question is not open for our consideration. It does not appear from the record that we have all the testimony upon which the trial court acted. We might say, however, that the testimony which is included in the record appears to us to be sufficient to sustain the judgment that was given. It is contended that error was committed in admitting testimony of a statement made by Samuel Fry to his son Albert. When Louisa, who was the wife of Albert, was upon the witness-stand an inquiry was made as to whether she had heard Samuel Fry make any statement relative to the land in controversy, and she answered without objection that she had. She was then asked to give the statement which he had made, when an objection was made that the statement was a part of a conversation with Albert, now deceased, and that, as communications between them would not be competent in favor of Samuel Fry, the giving of a part of the conversation would be improper. The statements of Samuel Fry with reference to the giving of the land to his son were certainly competent testimony when given by one authorized to testify to them. The fact that Samuel Fry could not testify in regard to a transaction or communication had personally with his deceased son does not preclude third persons who heard the statements from relating them as testimony. Neither can it be said that a part of the conversation upon that subject is incompetent, or that the plaintiffs in error were prevented from obtaining the entire conversation. Upon cross-examination they could have obtained from the witn'ess all of the conversation had bearing upon the question at issue. An attempt was afterward made to show by Samuel Fry what the transactions with his son were in respect to the land, but the court, upon objection, properly excluded the answer. It is said that as the testimony of Louisa concerning the statements of Samuel Fry had been received in evidence he should have been allowed to rebut or deny the conversation. It appears that there is no reason for complaint in this respect. The record shows, whether the testimony was admissible or not, that he was permitted to and actually did deny what was said by Louisa respecting the statements he had made. It thus appears that they had the privilege of cross-examining Louisa fully as to the statements, and that Samuel Fry was not only permitted to contradict her testimony, but was also allowed to state that he had never agreed to give Albert the land, nor ever said that he would make them a deed to the land. We think the plaintiffs in error have no cause to complain of the rulings upon the testimony. ' No other objection is presented by the record, nor do we find any error which warrants a reversal. Judgment affinned. All the Justices concurring.	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The opinion of the court was delivered by Martin, C. J. : On June 18, 1895, at the courthouse in Emporia, the plaintiff, a city of the second class, presented to the defendant, the judge of the fifth judicial district, a petition for the extension of the boundaries of the city. The defendant declined to hear the petition, on the ground that the duties sought to be imposed upon the judge by section 121 of the act relating to cities of the second class (¶ 884, Gen. Stat. 1889) are in nowise judicial, in their nature, but rather legislative. If this question were a new one, the writer would entirely concur in the view expressed by the district judge; but it was fully considered in the case of Callen v. Junction City, 43 Kan. 627, where the court' held, although unnecessary to a decision, that the findings of fact made by a judge of the district court, as required by this section, are the exercise of judicial power. That case has been followed in other cases, in one at least where a consideration of questions closely analogous was necessary in arriving at a proper conclusion. (Huling v. City of Topeka, 44 Kan. 577, 579, 580; Hurla v. Kansas City, 46 id. 738, 744, 745.) We think it best to follow these authorities, not withstanding we cannot assent to the reasoning upon which they ar'e founded. A peremptory writ will be awarded, requiring the judge to consider the petition. Johnston, J., concurring. Allen, J. : I feel satisfied that the decisions in the cases cited in the foregoing opinion were right, but the reasoning by which the conclusions were reached, and the proposition of law affirmed, that a judge acts judicially in passing on a petition to extend the corporate limits of a city, are in my opinion clearly wrong. I cannot conceive of an act more clearly and distinctively legislative in its character than that of determining what the political status of a district shall be. The division of the state into counties, townships, cities, etc., is a matter to be determined exclusively by legislative officers, and that duty cannot be imposed on a judicial officer, as such, against his consent. I do not think this court is bound, when the question is directly and squarely presented, by obiter dicta in former cases, nor by misstatements of the law, even though the former decision be based thereon. I do not think the district judge was under any obligation to pass on the petition, or that a writ ought to issue in this case commanding him, to do' so.	[ -16, -22, -11, -4, -54, 102, 22, 24, 16, -71, 101, 83, 109, -38, 20, 125, -85, 125, -48, 75, 100, -74, 7, -53, -78, -13, -5, -43, -79, -36, -10, -33, 76, 32, -54, -43, 70, 74, -127, -98, -82, 5, -87, -56, -38, -128, 52, 120, 50, 11, -107, 110, -13, 46, 24, -13, -87, 44, -38, -89, 16, -40, -98, -105, 109, 6, -77, 6, -98, -121, 88, 46, -112, 57, -54, -20, 83, -90, -122, -9, 101, -87, 8, 98, 103, 33, -67, -21, -8, -99, 14, -101, -115, -89, -106, 16, 98, -128, -74, -99, 101, 84, 11, 126, -26, 5, 94, 124, 15, -117, -74, -75, -49, 52, -126, 19, -21, -29, 33, 112, -60, -10, 93, 68, 18, 27, -113, -72 ]
The opinion of the court was delivered by Martin, C. J. : I. We will first consider the case as to the $2,000 note. It was alleged in the answer that M. L. Stewart was at the time the purchase was made a partner of Gilbert and Lehman in the tract called the “Stewart 40”'; that they had full power to dispose of it as they chose ; that Stewart knew they were selling it to the defendants, and that they were pretending to become joint purchasers of said lands. It is contended on the part of the bank that Stewart was a bona fide owner and holder of the nqte, and that the bank by the indorsement obtained a good title to it, free from any defenses; but the evidence of Stewart shows that he had full knowledge of the fact that Gilbert was acting in a dual capacity as vendor and vendee of the property, which was a dishonest relation, unless all interested parties were fully apprised of it. In Michoud v. Girod, 4 How. (U. S.) 503, 555, Mr. Justice Wayne, delivering the opinion of the court, said that the law “prohibits a party from purchasing on his own account that which his duty or trust requires him to sell on account of another, and from purchasing on account of another that which he sells on his own account. In effect, he is not allowed to unite the two opposite characters of buyer and seller, because his interests, when he is the seller or buyer on his own account, are directly conflicting with those of the person on whose account he buys or sells.” And this is a well-recognized principle, both at law and in equity. And as Lehman and Gilbert were the managing officers of the bank, and the owners of a one-half interest in the note, the bank was chargeable with notice of all equities between the original parties to it. (Mann v. National Bank, 30 Kan. 412, 420, 421, as modified in same case, 34 Kan. 746, 751, 752.) We therefore hold that the evidence should have been submitted to the jury as to this note. II. The complaint as to the $4,000 note is that Lehman and Gilbert knew that Moore held an option-for the purchase of the Briggs 40 at $15,000, which was to be sold to the syndicate for $16,000, and that this was not disclosed. Moore testified that he made no secret of it about Newton, and it is doubtful whether a full knowledge of the fact would have made any difference in the action of the defendants. Certainly Lehman and Gilbert had nothing to gain by the profit which Moore might make out of the transaction, unless it was in obtaining his assistance in the selling of the Stewart 40 by putting both tracts in together; but, besides - this, there is no suspicion of fraud attaching to Frances L. Briggs, the payee of this note. And even if we should treat Lehman and Gilbert as guilty of any fraud with reference to it, yet the bank might obtain a good title to the note by her indorsement, for it is well settled that ‘ ‘ the purchaser of a negotiable instrument from a bona-fide holder for value acquires as good a title as the innocent holder had, and may recover thereon, although he may have had notice of infirmities in the note when he took it.” (Bodley v. National Bank, 38 Kan. 59 ; Porter v. Steel Co., 122 U. S. 267, 283 ; Scotland County v. Hill, 132 id. 107, 117.) In the absence of evidence to the contrary, it must be presumed that the indorsement was made before maturity, and that the bank is a bona fide holder for value. (Rahm v. Bridge Manufactory, 16 Kan. 530.) The court below will be directed to modify its judgment by allowing $3,189.33 as of date June 23, 1891, on the $4,000 note, and the judgment will be reversed as to the amount allowed on the $2,000 note, and the case remanded for a new trial thereon, in accordance with the principles announced in this case and in that of Constant v. Lehman, 52 Kan. 227. All the Justices concurring.	[ -76, 122, -40, -98, -102, 96, 42, -102, 65, -96, -89, 83, 105, 66, 20, 79, -10, -19, 84, 66, -10, -77, 38, -29, -46, -14, -5, -99, -75, -19, -84, -41, 76, 32, -54, 29, -26, 67, -61, -44, 78, -123, 8, 68, -7, 64, 48, 15, 16, 74, 117, 29, -13, 44, 25, 74, 105, 42, 107, 57, -48, -8, 10, -121, 95, 54, 19, 37, -98, 73, -40, 14, -112, -111, 1, -24, 127, -90, -122, 116, 109, 41, 9, 34, 99, 1, -60, -17, 124, -120, 39, -57, -115, -89, 86, 88, 3, 96, -65, -99, 110, 16, -121, -12, -14, 29, 29, 109, 7, -113, -42, -125, 43, 126, -102, -55, -1, -125, 20, 64, -58, -96, 93, 117, 120, -101, -98, -75 ]
The opinion of the court was delivered by Allen, J. : The defendant was charged with and convicted of the premeditated murder of Sidney J. Jackman, in Clark county, on the 29th of January, 1895. He testified in his own behalf, and was examined and cross-examined at great length: His statement of the circumstances immediately connected with the tragedy is in substance as follows : That he came up town in Ashland, where both he and the deceased resided, about 10 o’clock in the morning ; that he saw the deceased in front of the butcher shop, which he had formerly owned, and which was then occupied by diaries Foster, and that Jackman spoke to him, saying, that “Lyons and the other fellows are going to be in this evening ” ; that Lyons was a cattle inspector of the Texas association ; that they were going to try to take a steer away from him, and that he would not give him up — would kill them first; that they went into the butcher shop and drank some whisky from a bottle Jackman had in his pocket. There were two rooms to the butcher shop, the front room in which meat was kept, and a small back room in which there was a stove with a fire in it, used as a kind of loafing room. In the southwest corner there was a writing desk, and north of it a trunk. Some other parties came in while they were in this small back room, including Tom Jackman, a brother of the deceased, who also produced a four-ounce bottle of whisky, which they drank. All the others then went out except the defendant, the deceased, and Foster. Jackman proposed that they should all chip in and get some more whisky. Jackman gave 10 cents and the defendant a quarter to Foster to buy whisky. When Foster went out to get the whisky, Jackman was sitting on the west side of the stove and a little to the south of it. The defendant was sitting on the north side of the room. The defendant states : “When Mr. Foster went through the middle door, he shut the door, and I heard the money-drawer. Sid. said, ‘Who is that?’ and I raised up off my seat and looked through the window in the door. “Ques. There is a window in the door between the back room and front room? Ans. Yes ; a little one. “Q. Just one pane of glass? A. Yes, sir. I told him it was Foster. ... I turned around to the water bucket that sat on the counter next to the east side of the back room and took a drink. “Q. What then? A. I turned back to the stove. “Q,. How? A. Turned around and'went back of the stove. “Q. Facing it? A. Yes, sir. “Q. How near were you to the stove? A. I walked up and just put my foot up on the 2x4 as it is around the stove. “Q,. Which foot, do you remember? A. My right' foot. “Q. Where was Sid. at that time?' A. He was sitting across at the southwest side of the room. “ Q. What, if anything, did you say at that time? A. I said, ‘ Sid. you are trying to break up my family, and you said that if I interfered that you would kill me, now what are you going to do about it?’ "Q. What, if anything, did he say? A. Heristhis way [indicating with his hand] and said ‘ God damn you, I will kill you,’ and I jerked the pistol out of my pocket and shot, and he jerked back this way as I shot, and fell, looked to me as though he hit the chair and went over this way against the trunk, and kind of doubled back and was in the corner. “ Q. Doubled back between the trunk and stove?' A. Yes, sir. “Q. I will ask you whether or not he struck the chair in falling? A. I think he did. That is the way it looked to me. “ Q. You saw when he rose, what, if anything, did he have in his hand? A. It looked like a knife when I saw it, after his hand got up. . . “ Q,. How did you happen to shoot the second shot? A. Because I thought he was getting his gun, then when he jerked his hand down — just as he threw his. hand down, I shot again.” The defendant then went out through theJront room of the butcher shop to the street. Foster testifies that having heard the shots he came back and met the defendant just inside the outside door of the shop ; that the defendant then said to him “ Do n’t go in. I had to do it. I was too quick for him or he would have got me ” ; that when he left the back room Jackman was sitting on a common stool chair southwest of the stove, his left foot on the iron ash-box forming the lower part of the stove, with his right foot crossed over it, leaning back ; that he had a pair of pants lying across his lap rolled up in a roll; was whittling a stick with a small penknife ; that when he came in he found Jackman lying with his face down, west and a little north of the stove, his left hand under him, -the pants between his left arm and his body, his right hand lying at his side, and the knife on the floor near by ; that his left foot was still on the box part of the stove a little' farther to the north, and his right foot was thrown over to the north side of the stove. Two ball holes were found in the body, one to the right and the other to the left of the breast-bone, and two spots were found on the back, apparently caused by bullets. The spots on the back were about five or six inches lower than the ball holes in the breast. The doctors testified that the ball must have passed through the heart, and that death was instantaneous. The theory of the prosecution was that Jackman had been giving information to the sheriff of cattle-stealing operations with which the defendant was connected, and that the defendant sought this occasion to kill him and get him out of his way. The claim of the defendant was that Jackman w'as intimate with his wife, and, when the subject was mentioned by Earnest, attacked him in the manner detailed by the defendant on the witness-stand, and that he shot him in self-defense. The principal claim of error is in giving the sixth instruction, which is as follows : ‘ ‘ In this case the killing with a deadly weapon is admitted by the defendant. The presumption therefore is that such killing was done with malice. This presumption stands until it is rebutted by evidence showing that the killing either resulted bjr passion produced by sufficient provocation, or by evidence that the killing took place under such circumstances that excused the defendant in taking the life of the deceased.” Many authorities are cited by counsel for the state supporting the instruction as given, and some even go much farther. The supreme court of Massachusetts, in the case of Commonwealth v. York, 9 Metc. 93, in an elaborate opinion affirmed an instruction as follows : “The rule of law is, when the fact of killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it is malicious and an act of murder. It follows, therefore, that in such cases the proof of matter of excuse or extenuation lies on the accused, and this may appear either from evidence adduced by the prosecution or evidence offered by the defendant.” The supreme court of Ohio, in the case of Davis v. The State, 25 Ohio St. 369, said: “The charge of the court, that malice is to be intended from the fact of killing, and that circumstances of justification or extenuation, not disclosed by the evidence adduced against him, are to be made out by the accused, is in our opinion unexceptionable, and the well-settled law of such cases.” In 2 Bishop on Criminal Law, § 680, it is said : “ As general doctrine, subject, we shall see, to some qualifications, the malice of murder is conclusively inferred from the unlawful use of a deadly weapon resulting in death.” In the case of The State v. Mahn, 25 Kan. 184, it was held not error to refuse the following instruction : “The jury are further instructed that the fact alone, by itself, that the deceased was. killed by defendant, is not sufficient to establish a malicious intent.” It was said in the opinion : “In many" cases the above instruction would be good law, but in the present case it would be misleading and erroneous. In the present case, the fact of killing was not the only fact that tended to show a malicious intent on the part of the defendant.” 1 malice- Notwithstanding the numerous authorities affirming the proposition of law contained in the instruction given in this case, we think it subject to criticism, and that the jury should never be told that malice or any other element of crime is presumed from any one fact, or partial group of facts in the case. Nor should they be told that a presumption arising from one act stands until rebutted by evidence. A criminal case is not to be severed into parts by the court, so that the prosecution, having established 1)3T evidence certain facts, is relieved from the burden of showing other essential elements of criminality. The true rule, as heretofore established by this court, in cases like the one under consideration, is that the burden of proving the guilt of the defendant and every element of crime rests on the state throughout every stage of the trial, and that all the evidence introduced on both sides is to be considered by the jury in arriving at a verdict of guilty, or not guilty. The presumption of malice arising from the use of a deadly weapon with deadly effect is not properly to be deduced by the court as a matter of law, but is to be inferred b3T the jury as a matter of fact, because the secret purposes of the mind can only be made manifest through external acts and expressions. As the conduct of a sane person is directed by the will, he is presumed to act intelligently, and to intend that those results shall follow each act that are known by everybody to be the natural and inevitable effects of such acts. In a prosecution for homicide a case can scarcely be conceived in which, the only proof bearing on the motive of the accused is of the bare fact that he committed the homicide with a deadly weapon. In the nature of things there must be other facts and circumstances indicative of his purpose. Instead of directing the jury that a presumption arises merely from one or more facts proven, and thereby conveying to their minds the impression that they may cease to inquire further and assume malice as proven, it would be better to instruct them that they may infer malice from an intentional killing with a deadly weapon ; but that this, like every other element of crime, is to be determined from all the evidence in the case. But while we do not approve of this instruction, and think it subject to just criticism, it does not follow of necessity that ^ie judgment should be reversed on account of it. As was well said by the supreme court of Indiana in the case of Boyle v. The State, 105 Ind. 469, “Instructions are not to be disposed of by a process of dissection, but are to be taken as a whole.” It cannot be claimed in this case that the jury were left with the impression that there was a presumption of guilt resting on the defendant throughout the case because of the conceded facts, and that it was incumbent on him to prove his innocence. By the nineteenth instruction the jury were told that the defendant was presumed innocent of the charge, and that this presumption should continue in his favor until every ingredient necessary to constitute the offense was proved beyond reasonable doubt. And by the twentieth instruction they were further told that the burden of proof rested on the state to establish every ingredient of the offense, and that so long as a reasonable doubt of Ms guilt remained lie-must be acquitted; that doubt as to two or more degrees of an offense must be resolved in favor of the lower degree. They were fully instructed with reference to murder in the second degree, the various degrees of manslaughter, and justifiable homicide. They were fully informed of the defendant’s right to defend himself if he were attacked by the deceased, as claimed by him. The law of self-defense was given in terms as favorable to the defendant as it has ever been declared by any court within our knowledge. There is nothing in the evidence calculated to raise a doubt that the killing was done with malice, and was premeditated, unless it was done in self-defense. The testimony disclosed no middle ground on which the jury could fairly base a verdict finding the defendant guilty of any offense less than murder. The defense rested almost entirely on the testimony of the defendant himself and of other witnesses to his previous peaceable disposition. On the part of the state, many circumstances were shown tending strongly to prove that the defendant shot Jackman while he was sitting in his chair, and that this claim that Jackman raised up and assaulted him was a bare fabrication, invented for the purpose of shielding himself'from the punishment due his crime. Among the strongest circumstances may be mentioned the position of the body, with the left foot still on the base of the stove, and the other parts in the position in which they would naturally have been found if he had been shot while sitting in his chair and had fallen over dead. The pants which had been lying across his lap were between his body and Ms arm. If he had raised up from his chair to attack the defendant with.his knife, it would seem altogether probable that they would have been thrown aside or dropped at his feet. If lie was sitting in his chair when shot, the fact that the bullets ranged downward is accounted for; while if he were standing up with his arm raised to strike with a knife, being a tall man, it would seem probable that the balls would go straight into his breast. Other circumstances not necessary to here mention tended to support the theory of the state. We are unable to perceive how the defendant could have been prejudiced by the instruction complained of. Objections were made to questions asked Doctor Workman calling for an opinion as to whether Jack-man’s body when found was in the position it naturally would have been in if he had rolled out of his chair when shot. Conceding that this was not a proper subject for a medical expert to express his opinion upon, the answer is so indefinite that it oould not have had any appreciable weight with the jury. ‘ ‘ There would be no reason why he should roll to one position more than another by the position he was sitting in. I do think, though, from the position of the foot on the fender, that it is not at all likely that he could have fallen from a standing posi- . ,, mi n . _ tiion. 1 he last part of the answer was > inadmissible, but it was hardly responsive to the question, and no motion was made to strike it out. Complaint is also made with reference to the evidence of the sheriff, Ravenscraft, as to a conversation had between himself, the defendant, and his partner, Murphy, a short time before Jackman was killed. This conversation related to charges of cattle stealing that had been made against the defendant and his partner. In this conversation a person whose name was not mentioned was referred to • as having given information to the sheriff. Various references were made to this third person, and the sheriff stated that it seemed to be understood by all of them who was meant, though his name was never mentioned. The sheriff was then asked whom he referred to as the person who had given him information, and who had interfered with a sale of cattle by the defendant and his partner. This was objected to as being incompetent. The objection being overruled, the witness answered, “ Sidney Jackman.” Objection was made also to the whole subject-matter of this testimony as being irrelevant to the issue. We think it was com-X>etent for the state, in order to show a motive for the defendant to kill Jackman, to prove that Jackman had been charging the defendant with a crime, had been giving information to the sheriff, and otherwise interfering in the defendant’s affairs. And where in a conversation a third x>arty is referred to whose name is not given, as in this case, after showing the facts and circumstances which tend to point out the third person referred to, it is proper for the witness to name the person he referred to. In doing so, he does not give an oxñnion, but states a fact within his own knowledge. In this case both the defendant and his partner, Murphy, testified with reference to this conversation, and that they did not refer to Sidney Jackman at all; that the third person they meant was Thomas Jackman. If the jury believed, either that Thomas Jackman was the person referred to, or that there was a misunderstanding — the sheriff referring to one, and the defendant and his partner to another — then, of course, the evidence would be without force against the defendant; but it was for the jury to say, from all the- evidence, who was in fact referred to, and whether or not the parties did fairly understand each other. No error was committed in the admission of this evidence. There is no force in the claim that the court lost jurisdiction because the judge pro Urn., who was elected on the 4th of June in the absence of the district judge, attempted to adjourn court before taking the oath of office. It appears that his attention was soon called to the omission; that he thereupon duly took and subscribed the oath of office, and made a proper order adjourning the term to the same day and hour as first announced. Whether the first adjournment was valid or invalid, the second was unquestionably valid, and the term was properly held at the time to which the adjournment was made. This case is not at all similar to that of In re Terrill, 52 Kan. 29. A motion for a new trial was made, and numerous affidavits and the oral testimony of several witnesses were introduced in support thereof. The only newly-discovered evidence which appears to be important, disclosed by the testimony, is mere hearsay. Jacob Haindel states wdiat he heard L. J. Wood say — that Jackman had made a certain threat against Earnest. Wood’s affidavit was not presented. S. H. Lackey testified as to what one Frank Dudley had told him he knew about the matter. This was the baldest kind of hearsay, and altogether inadmissible for any purpose. No good reason is shown why W. G. Curtis, who helped take care of the body of Jackman, could not have been called as a witness at the trial. The affidavits with reference to what jurors said as to the basis of their verdict were inadmissible for the purpose of impeaching the verdict. The showing was wholly insufficient to warrant the granting of a new .trial. . We find nothing in the record warranting an inter ference by this court with the judgment that was rendered. It is therefore affirmed. Martin, C. J., concurring. Johnston, J., dissenting as to the law declared in the second and fourth propositions of the syllabus and the corresponding portions of the opinion.	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The opinion of the court was delivered by Martin, C. J. : I. The plaintiff in error contends that under the pleadings the burden was upon the plaintiff below to prove by a preponderance of the evidence that the death of the assured from taking the opium or other poisonous substance was unintentional and accidental. There is no room to doubt that the taking of the opium was the act of the assured ; but the courts are in general accord in holding that the words of a condition avoiding the policy if the assured shall die “by his own hand” or “by his own act” are equivalent to a proviso against suicide or intentional self-destruction. ( Bliss, Life Ins. §§228, 229; 2 Biddle, Ins. §831; Life Ins. Co. v. Terry, 15 Wall. 580, 591; Penfold v. Universal Life Ins. Co., 85 N. Y. 317, 321, 322 ; N. W. Mutual Life Ins. Co. v. Hazelett, 105 Ind. 212; Eq. Life Assurance Soc. v. Paterson, 41 Ga. 338, 367.) Unless the answer be construed as intending to allege, suicide as a defense, it was insufficient in this respect, and no reply thereto was necessary, and a general denial would be sufficient if the insurance company had alleged the suicide of the assured. We therefore hold that the burden of proof was not changed by reason of the condition of the pleadings ; and, in order to a successful defense on this ground, it devolved upon the insurance company to establish by a preponderance of the evidence that the taking of the opium was with intent on the part of the assured to take his own life, and the court did not err in this respect in giving instructions 4, 5, and 8. II. S. Fred Harker, then being a school-teacher, 20 years of age, was adjudged insane in the probate court of Perry county, Illinois, on November 5, 1885, the verdict reciting that the cause of insanity was excessive study, and that Harker manifested suicidal tendencies. He was committed to the asylum for the insane at Anna, 111., on the next day, and on December 34 the superintendent wrote to the authorities of Perry county, notifying them that Harker had recovered, and asking them to remove him within 30 days, and he was finally discharged from the asylum December 24, 1885. The testimony shows that, while at the institution, Harker was afflicted with acute melancholia, a mild form of insanity unaccompanied by delusion. Afterward, he was a student at the university at Ottawa, Kan., further preparing himself as a teacher and for the Baptist ministry. He then became the principal of the high school at Columbus, and during the vacation of 1890 he visited relatives at Sioux City, Iowa, and El Dorado, Kan., returning to Columbus on July 3, with a view to an engagement for preaching to the Baptist congregation for three months, having so served them before occasionally in the absence of the regular pastor. There was testimony that Harker suffered to some extent from insomnia, and that he took powders for the purpose of producing sleep. He was discovered in an unconscious condition in his room on the afternoon of July 5, and he died that night at about half past 9 o’clock, the physicians being of opinion that the death yas from opium poisoning. The theory of the plaintiff was, that Harker had accidentally taken an overd/ose of morphine powders or opium to produce sleep, wfyile the defendant maintained that he had committed suicide. Certain circumstances tended to support each of these conflicting theories, and instruction 9 may have been of much, importance ; but it seems to be fairly settled that in the absence of satisfactory evidence as to the death being accidental or suicidal the presumption is in favor of thedheory of accidental death. (Bliss, Life Ins. § 367 ; 1 May, Ins. § 325 ; 2 Biddle, Ins. § 842 ; Insurance Co. v. Bennett, 90 Tenn. 256, 261; Keels v. Mutual Reserve Fund Life Association, 29 Fed. Rep. 198 ; Mallory v. Travelers’ Ins. Co., 47 N. Y. 52, 54; Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 667.) III. A mere misstatement, unless wilful and fraudulent, will not avoid the policy, in the absence of a warranty of the truth of the statement. (Washington Life Ins. Co. v. Haney, 10 Kan. 525 ; N. W. Mutual Life Ins. Co. v. Woods, 54 id. 663.) The trial court, however, treated the answer to question 9 as a warranty, as fully shown by instructions 10, 11, 12, and 13. A-single expression occurs in instruction 12 which might indicate that the court had in mind the law as to a misstatement in the absence of Warranty; but, as it is immediately followed by the direction that, if the jury believed from all the evidence that the answer to said question was in fact untrue, they should find for the defendant, we tliink that the fault of referring to the knowledge of the applicant must be deemed immaterial. There was no evidence tending to show hereditary insanity, or that the assured was mentally afflicted at any time after his discharge from the asylum in 1885. The presumption of continued insanity arising from an adjudication thereof may be overcome by evidence other than an adjudication of restoration (Water-Supply Co. v. Root, ante, p. 187; Rodgers v. Rodgers, ante, p. 483, 43 Pac. Rep. 779), and on this point instruction 12 was correct; and, as there was no intimation of any recurrence of the 'malady, there was no evidence, except the record of adjudication of insanity in 1885, that the answer of the assured to question 9 was in fact untrue, and any presumption arising from that record was fully rebutted by the evidence. Some questions are raised upon the introduction of evidence, but they are without substantial merit, and the judgment must be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Martin, C. J. : I. The plaintiffs in error say that the person making the contracts for the lumber and the hardware was not the owner of the land, and therefore no mechanic’s lien could attach thereto. Cynthia A. Calkins was in possession, however, under a contract of purchase, which -was soon followed up by deeds for the property from Augusta E. Shelton and her husband. Whether the latter had fully paid Elizabeth W. McCracken or not at the time the contracts for material were entered into, or even when the Sheltons executed their deeds to Mrs. Calkins, is immaterial, for Elizabeth W. McCracken is not a party to this litigation, and is not bound thereby. It is probable, however, that she received full payment before the execution of the deeds by the Sheltons ; and, as the mortgages and the mechanics’ liens rest upon the same title, the plaintiffs in error have no just ground of complaint in this respect. Cynthia A. Calkins was “the owner” of these three lots within the meaning of the statute relating to mechanics’ liens. (Hathaway v. Davis, 32 Kan. 693 ; Lumber Co. v. Osborn, 40 id. 168 ; Mortgage Trust Co. v. Sutton, 46 id. 166 ; Drug Co. v. Brown, 46 id. 543, 546.) II. Counsel for plaintiffs in error contend that the statute does not contemplate nor provide for the filing of a single lien to cover the work or materials entering into separate and distinct buildings on different properties,.even when such work is done or materials furnished under one contract. But the evidence fails to show that the plat of ground 75 by 145 feet in size had been subdivided into lots at the time the contracts for .material were made, or that a tract consisting of three lots had been divided into two separate properties ; and we do not know of any legal objection to a single contract for furnishing materials for two or more buildings on several contiguous lots constituting a single tract or parcel of ground. (Carr v. Hooper, 48 Kan. 253, 257 ; Van Laer v. Brick Works, ante, p. 545, 43 Pac. Rep. 1134; Meixell v. Griest, 1 Kan. App. 145, and cases cited.) This case is distinguishable from Lumber Co. v. Hegwer, (Kan. App. ), 42 Pac. Rep. 388, where there were four separate contracts for the erection of four dwellings upon four contiguous lots. The judgment of the court'below will be affirmed. All the Justices concurring. Not yet reported.	[ -16, 122, -8, -67, 26, 106, 42, -40, 121, -95, -76, 87, -51, -122, 29, 105, -78, 93, 80, 106, 71, -78, 7, 107, -46, -77, -79, -51, -71, 89, 116, 79, 76, 52, -54, -43, -58, -126, 69, 28, -114, 36, 8, -52, -39, 64, 52, 59, 16, 75, 113, -114, -13, 40, 25, -61, 40, 46, 79, 57, -16, -72, -101, -121, 95, 22, 51, 36, -100, 3, -24, 10, -112, 52, 2, -24, 115, -74, -42, 116, 71, -103, 9, 102, 98, 32, 45, -17, -56, -104, 46, -10, -99, -89, -110, 24, 35, 9, -73, -99, 108, 64, 6, 126, -26, 29, 29, 108, 15, -117, -10, -79, 15, 114, -104, -125, -50, 7, -80, 65, -49, -96, 93, 7, 51, 27, -98, -4 ]
The opinion of the court was delivered by Johnston, J. : This was an action brought by M. R. Mudge against S. E. Hull, as sheriff, and the Kansas National Bank of Topeka, to enjoin the enforcement of a judgment. On May 2, 1889, the bank recovered a personal judgment in the district court of Osage county against Mudge and other parties, and at the same time a decree foreclosing a certain mortgage which had been given to secure the payment of the debt. In his petition Mudge attacked the validity of the judgment upon several grounds, and when the action came on for trial objection was made by the defendants to the introduction of any testimony under the petition, for the reason that it did not state a cause of action in favor of the plaintiff and against the defendantsi The motion was sustained and judgment rendered for the defendants, and of this ruling the plaintiff complains. The first ground of attack upon the judgment is that the district court of Osage county had no jurisdiction of the subject-matter or of the person of Mudge at the time the judgment was rendered against h'im. It is contended that Mudge was improperly joined with the other defendants, and that jurisdiction could not be acquired over him by the service of a summons in a county other than where the action was brought. Mudge had not signed the mortgage, and did not reside in Osage county. 'He was brought into, the case because he had acquired a title to the mortgaged land, and it was alleged that he had assumed a portion of the mortgage debt. The foreclosure action appears to have been properly brought in Osage county, where service was obtained upon codefendants of Mudge. Having been legally instituted in that county, a summons could be properly issued and served upon Mudge in another county. The summons served upon him did not have indorsed thereon the amount for which judgment would be taken against him in case of a default, but instead there was an indorsement that the action was brought “for foreclosure of mortgage.” This, however, could not avoid the judgment, as the action was not one for the recovery of money only, and no indorsement was required. (Beverly v. Fairchild, 47 Kan. 289.) If Mudge had not been properly joined in the case, it would have been only an error, and one which would be waived by a failure to demur or answer. The record shows that he failed to appear in the «ase, or to file any pleading therein. It appears, however, that Mudge was a proper and necessary party. He held the legal title to the mortgaged premises, and it is alleged that he had agreed to pay a portion of the mortgage indebtedness upon which the action was based. As he was properly brought into the case, he was in court for every purpose connected with the action, and was bound to take notice of every step in the proceedings. (Kimball v. Connor, 3 Kan. 414; Curry v. Janicke, 48 id. 168.) It is claimed that the district court of Osage county lost jurisdiction of the case by granting an application for a change of venue. On account of the disqualification of the judge, one of the defendants made formal application for a change of venue, which was granted. A few days later, at the same term of court, and before the papers or any transcript of them had been transmitted to another county, the defendant who had applied for the change asked leave to withdraw his application for a change of venue, and to have the order granting such change set aside. The plaintiff and the defendants afterward in the case consented to such order being made, and the court then vacated and set aside its former order, and allowed the application to be withdrawn. On the same day, all of the parties, except those in default, appearing, a pro tern, judge was elected upon the order of the regular judge, who, after being duly qualified, proceeded to hear the case and to enter judgment. As the case was never in fact transferred, nor any of the papers nor a transcript of the proceedings ever sent to another county, we think that during the term it was within the power of the court to vacate its former order. "It must be remembered that a trial court, for the purpose of administering justice, has a very wide and extended discretion in setting aside or modifying proceedings had in its own court, if it does so at the same term at which such proceedings were had.” (Hemme v. School District, 30 Kan. 377 ; The State v. Hughes, 35 id. 626 ; The State, ex rel., v. Sowders, 42 id. 312 ; In re Black, 52 id. 64 ; 1 Black, Judg. §305.) Under the rule of these cases, the trial court has complete control over its orders and judgments during the term at which they are rendered, and if they have not been executed they may during such term be vacated or modified as .the court may deem best. The district court of Osage county did not entirely lose jurisdiction of the case until the papers were transmitted and the change of venue perfected. We think it was within the power of the court, at the same term and before the papers were transmitted, to vacate its order and allow the defendant to withdraw his application. Mudge was not present when the order was first allowed, nor does it appear that he had any knowledge of the same until after it was vacated. There is no ground, therefore, to claim that he was misled by the action taken ; and of the power of the court to vacate the order we have no doubt. (Servatius v. Pickel, 30 Wis. 507 ; People v. Zane, 105 Ill. 662 ; Seth v. Chamberlaine, 41 Md. 186 ; Coal Co. v. Coal Co., 64 id. 302; Sanford v. Sanford, 28 Conn. 6 ; The State v. Webb, 74 Mo. 333 ; Colvin v. Six, 79 id. 200 ; Liese v. Mitchell, 53 Mo. App. 563.) Under the facts disclosed by the record a pro tern. judge was properly elected, and the allegations of the petition were abundantly sufficient to sustain the jurisdiction and the judgment. Much is said in the written argument as to the facts in the case, and it is insisted that the debt which formed the basis of the judgment was not due when the action was brought, nor even at the time the judgment was rendered against Mudge. These are matters which might have been made the subject of review, but cannot destroy the judgment, nor sustain this attack upon the same. There was jurisdiction in the court, as the averments of the petition showed an existing liability which had accrued at the time the action was begun and judgment taken. 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 Johnston, J. : M. G. Miller brought an action to recover $1,326, with interest thereon, due upon a promissory note executed by Luke E. Gorsuch and Mary E. Gorsuch, and to foreclose a real-estate mortgage which they had executed to secure the payment of the note. Luke E. Gorsuch had died, and his widow and children, who were the heirs at law of the deceased, were made defendants, as were also Mary J. Hughes and Benjamin Reeder, who claimed an interest in the mortgaged premises. Mary J. Hughes and Benjamin Reeder answered separately, demanding judgment against the Gorsuches in a large sum of money, setting forth alleged claims and liens which they claimed were prior to the mortgage of M. G. Miller. The court awarded judgment in favor of Mary J. Hughes in the sum of $7,975.80, and made the judgment a first lien upon the mortgaged property, but denied to her a judgment for the greater part of the amount demanded, holding that the same had been paid off and extinguished. Judgment was given in favor of Miller for $1,798.95, which was declared a lien upon the mortgaged premises second only to the one last mentioned in favor of Mary J. Hughes. Mary J. Hughes and Benjamin Reeder complain of this judgment, and insist that they were entitled to a judgment against the Gorsuches for a sum at least $20,000 more than was awarded to them, and that they were entitled to have that additional sum declared a lien on the mortgaged lands prior and superior to that of Miller. For this purpose they aslc a reversal of the judgment. It is manifest that the Gorsuches are necessary parties to a review of the rulings and judgment, and that, although they were codefendants with Hughes and Reeder in the court below, they were actually adverse, and must be treated- as opposite parties in this proceeding. The right to a review is now questioned by a motion to dismiss, for the reason that the case-made was not served upon the Gorsuches within' the time limited by the court. The time fixed by the court within which the case should be served Avas July 29, 1891, and the order provided that Miller should have 10 days thereafter Avithin which to suggest amendments, and the Gorsuches should have 10 days from the expiration of the time given to Miller Avithin Avhich to suggest amendments, the case to be settled on five days’ notice. It appears that the case-made AAras not served on the Gorsuches until August 8, 1891. The serving of the case is one of the most important steps in obtaining a revieAV in the appellate court. The statute provides that the case-made must be served upon the opposite party or his attorney Avithin three days after the judgment or order is entered, or Avithin such further time as may be allowed and fixed by the court or judge. (Civil Code, §§ 548, 549.) Where a plaintiff in error fails to serve a case upon the opposite party or his attorney within the prescribed time, it is, as to such party, a nullity, and the court or judge has no power thereafter to allow and settle it. (Funsten v. Fox, 51 Kan. 682.) Where there are several adverse parties who may be affected by the reversal or modification of the judgment, the case-made, or a copy thereof, must be served upon each of them. If all are represented by an attorney, a service upon that attorney would be sufficient. Where there are several parties to be served, and the time is limited within which it may be done, a sufficient number of copies of the case may be made to permit of service upon all. Considerable cost would result from the employment of this method, but that might be avoided by obtaining from the court an allowance of sufficient time to serve the original case upon each of the parties who should be made defendants in error. In such a case the order of the court might fix the specific times when the case should be served on each of the parties, allowing each a sufficient time to suggest amendments before it was required to be served on another of the parties, and when all had been served, and all had opportunity to suggest amendments, the case could be settled and signed, after due notice to each, at a fixed time. In the present case the order required service to be made upon all on or before July 29, 1891. The fact that the Gorsuches were given 10 days after Miller had suggested amendments within which to suggest their amendments did not enlarge the time for the service of the case upon them. As the Gorsuches are necessary parties, the failure to serve the case upon them, and to properly bring them into this proceeding, defeats the jurisdiction of this court, and prevents a review of the rulings and judgment. (Paving Co. v. Botsford, 50 Kan. 331; Steele v. Baum, 51 id. 165 ; Loan Co. v. Lumber Co., 53 id. 677; Norton v. Wood, 55 id. 559 ; 40 Pac. Rep. 911.) The petition in error will be dismissed. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J. : The principal inducement for establishing a glass factory at Paola was the cheap fuel which it was supposed could be obtained there, and which the gas company agreed to furnish. The manufacture of glassware was an untried enterprise in the West. It was unsuccessful, and the cause of the failure is the main subject of dispute. On.one side, it is contended, that it was due to an insufficient supply of gas, which the gas company had agreed to furnish ; and on the other side, the contention is that the supply was ample, but that the factory was defective in plan and faulty in construction, so that the gas supplied was not utilized. The findings of the referee, based as they are upon conflicting testimony, settle the contention in favor of the glass company. It must be assumed in this review that the sole cause of the failure was the violation of the contract by the gas company in refusing to furnish the quantity of gas that it had agreed and whs able to supply. The contract having been broken by the gas company, it must be held liable for all the direct and proximate damages which resulted from the breach. How shall the damages be measured? The allowance made by the referee was in two items: First, $9,000 for the expense incurred in the unsuccessful attempt to operate the factory; and, second, $10,000 for the anticipated profits of running the factory for a period of 10 months. As to the first item, there is no dispute except as to the amount of the allowance. It is conceded that the glass company is entitled to recover the actual loss incurred in the unsuccessful attempt to operate the factory. There is a controversy as to what constitutes actual expense of operation, and it is contended that the allowances made were not established by competent testimony. In an attempt to show that expense or loss, the president of the glass company was permitted to state the amount of the pay-rolls of the company and the contents of some of the books of account. He did not have the pay-rolls or books at hand, and it does not appear that he had prepared or kept them. It is clear from his testimony that he had not personally attended to the payments for labor, material, utensils, machinery, and repairs, and he did not pretend to have any definite knowledge as to either items or amounts, except as he obtained them from the books and accounts. In the absence of personal knowledge of the witness or other proof of actual payment, the expenses incurred could properly have been shown by the pay-rolls and books ; but before they could have been offered it was necessary that they should have been identified, and to show that they were kept in such a manner as to make their contents receivable in evidence. There was no showing as to what the books were — whether they contained a pay-roll, and under whose direction or supervision they were kept; whether the entries therein were correct, or made at or near the time when payments were made. Without having transacted the business, or having any recollection of the facts independently of rhe books, he was allowed to testify of losses amounting to $9,000, which were necessarily made up from a great number of items. The information which he had, however correct it may have been, was derived from others and from books and accounts of which it is not shown that he had any knowledge at all. His testimony as to what was shown by the pay-rolls and books is obviously incompetent. This was substantially all the testimony upon which the greater part of the allowance for the net cost .of the unsuccessful operation of the plant rested. His testimony was that the pay-rolls showed that over $7,000 was paid ,to operatives, while in. another part of his testimony he stated that the. cost of the product.made during the time of operation was between $5,000. and $6,000 ; and upon this incompetent and inconsistent testimony the referee found that the amount paid to operatives was $5,650.. . The testimony, upon this matter was incompetent. and wholly. insufficient to sustain ’the finding that was made. Objection.is made to the allowance of the expenses in bringing operatives to Paola.-. It appears, that men skilled in the manufacture of glass could not.be found in. Kansas, and therefore the company was obliged to go to St. Louis and other points for skilled operatives. In order to manufacture glassware it was necessary to have men who were skilled in that business : and, if it was necessary to pay the cost of their transportation m order to induce them to come west, we think it may be treated as a part of the expenses of the actual operation of the factory. The allowances made to the officers of the corporation are contested. The mere fact that they were officers of the corporation, or that they might have been entitled to salaries from the corporation, does not require that the salaries shall be treated as a part of the expenses of operation. If the services performed by them were necessary to the operation of the factory, the compensation which the ° company had agreed or was required to pay for such services should be treated as a part of the expense of operation for which the gas company is liable. The liability, however, should be confined to actual expenses, properly and necessarily incurred in the unsuccessful attempt to manufacture glass. Some of the testimony regarding the expenses of operation was incompetent, as we have seen, and some was weak in failing to show that the expenses allowed were reasonable and necessary, or necessarily and actually paid out; and the fact that the referee made an allowance of about $4,000 more than was claimed in the petition emphasizes the errors that were committed. The main contention, however, in the case is over the allowance of prospective profits. The contract was doubtless made, and the enterprise undertaken, for the profits expected to be gained. The gas company must have been aware that that was the purpose of the venture, and if the failure was due to the fault of that company it cannot escape liability for the actual loss sustained. It is urged that damages cannot be measured by the anticipated profits, as the calculation is necessarily based on conjecture, rather than upon facts. It is the aim of the law to give a party injured by the breach of a contract all the damages which he may suffer from such breach ; and where the contract is made with a view to future profits, and such profits are within the contemplation of the parties, they may, where they can be established with certainty, form a just measure of damage. It has been said that, as a general rule with a few exceptions, anticipated profits prevented are not recoverable in the way of damages for the breach of contract; but it is well settled in this state that damages based on prospective profits which would have been realized had the contract been performed may be allowed, providing they are fairly within the contemplation of the parties, are the direct and natural consequence of the breach of the contract, and are susceptible of being ascertained with reasonable certainty. (Hoge v. Norton, 22 Kan. 374; Brown v. Hadley, 43 id. 267; Town Co. v. Lincoln, ante, p. 145, 42 Pac. Rep. 706.) All the authorities agree that profits which are conjectural, and cannot be measured by the usual rules of evidence to a reasonable degree of certainty, are not recoverable. The manufacture of glass in Kansas was subject to many uncertain contingencies, and the profits that would have been realized if the business had continued are largely a matter of speculation and conjecture. No such business had ever been established in Kansas, the material found here had not been used for the making of glass, and whether the natural gas discovered at Paola could be successfully applied and utilized was a problem. In many respects the manufacture was only an experiment. It is estimated, however, that in the brief period of 10 months, and with only a small investment, the net profits would have reached the sum of $10,000. The success of the adventure depended not alone on the supply of fuel. If material could be obtained at fair prices, skilled and careful workmen employed at reasonable wages, and kept steadily at work, and if, with fuel, material, labor, and skill, the large product that was estimated by the referee could have been made, the enterprise might still fail. A market must be found for the product, and it would have to be sold in a new field for an amount in excess of the cost of production. That involves the advertising of the business and the company, which, as yet, had no standing in the business world, the building up of a credit and a reputation, the state of the glass trade in the country during the 10 months, including the fluctuations of the market, the competition that would have to be met, the railroad rates, and the cost of sale and distribution. There are other elements of uncertainty; and what assurance is there that any profit whatever could have been made during the continuance of the contract ? Then there are the mishaps which usually attend the establishing of a new industry— the delay or failure in obtaining suitable material, the breaking of machinery, accidents in the application of natural gas, which was an untried fuel, or resulting from the careless or unskilful acts of employees, a misfortune in the melt of the glass, which sometimes occurs, breaking utensils or appliances that would have caused both delay and expense. It will be conceded that only a small proportion of the industrial enterprises attempted are successful, and a much fewer number of them realize profits during the first 10 months of their existence. If it had been an established business, or if other manufactories of a like kind existed in Kansas under similar conditions, there would.be some basis of estimating profits; but we fail to find any safe guide in measuring the gains that would have been made by this factory if fuel had been supplied. Some of the parties connected with this enterprise had been engaged in the manufacture of glass at St. Louis, where coal was used for fuel; but the testimony discloses that its operation resulted in losses rather than gains. Who can say that there would have been a different result by the operation of a factory in Kansas for the short period of 10 months ? Where the expected profits x x depend upon so many contingencies and are so uncertain and speculative in character as in this case, a different measure of damages must be employed. (Town Co. v. Leonard, 46 Kan. 354.) Much reliance is placed upon the rulings of this court in the cases of Hoge v. Norton, supra ; Brown v. Hadley, supra; and Town Co. v. Lincoln, supra. All of these cases are close to the border line dividing profits which may be allowed from those which should be rejected. In each of them, however, the business upon which profits were allowed was not new or untried, but had been established and carried on to such an extent in the community that a safe basis of calculation could be found. In Hoge v. Norton, supra, profits were estimated on the cattle business, which is well established in Kansas, and is carried on to such an extent that the laws of feeding and growth are well understood, and the results reasonably certain. In Brown v. Hadley, supra, the business was dairying, which, it was said, has been extensively engaged in ever since the settlement of the state, and that therefore the gains could be estimated by men of experience in that business with reasonable certainty. In Town Co. v. Lincoln, supra, the breach of the contract resulted in breaking up an established business, and the profits that had been made for a reasonable period next preceding the time of the breach furnished a reasonably certain basis of calculating those that would have been realized if no breach had occurred. All of these cases recognize the rule that uncertain and contingent profits are excluded by the law, and in them there is nothing to support the allowance of profits on a business entirely new in this section of the country, and where there is no basis upon which to determine whether any profit whatever would have been made. We think a safer and better rule may be found for measuring the damages, and in cases where they may be estimated in a variety of ways, that rule should be adopted which is most definite and certain. A just measure, and one which is conceded by the plaintiff in error, is the rental value of the idle factory, and, if it has no rental value, then interest on the money invested in the same, together with interest on any idle working capital which could not be used by reason of the violation of the contract. Considering the uncertainties attending the manufacture of glass in this state, we think the measure suggested is a safer standard for measuring the loss than the anticipated profits could be. The view taken that profits are not allowed in a case of this character is in accordance with the current of authority, but only a few of the cases will be cited : Abbott v. Gatch, 13 Md. 314 ; Todd v. Railway Co., 39 Minn. 186 ; Popos key v. Munkwitz, 68 Wis. 322 ; Griffin v. Colver, 16 N. Y. 489 ; Benton v. Fay, 74 Ill. 417; Railway Co. v. Howison, 86 id. 215 ; Pennypacker v. Jones, 106 Pa. St. 237 ; Allis v. McLean, 48 Mich. 428 ; Dixon-Woods Co. v. Glass Co., 32 Atl. Rep. 432; Iron Works v. Oatmeal Co., 55 N. W. Rep. 518 ; Bridges v. Lanham, 14 Neb. 369 ; Rhodes v. Baird, 16 Ohio St. 573 ; Mining Co. v. Fraser, 130 U. S. 611; Howard v. Manufacturing Co., 139 id. 199 ; Jones v. Call, 96 N. C. 337; Brownell v. Chapman, 84 Iowa, 504. The judgment of the district court will be reversed, and the cause remanded for another trial. All the Justices concurring.	[ -16, 126, -4, -116, 26, 96, 42, -38, 113, -95, -75, -45, -19, -46, 28, 121, -26, 125, -48, 106, -41, -77, 3, 91, -34, -5, -15, -35, -79, 108, -12, 124, -52, 36, 74, -107, -90, -62, 81, 84, -50, 29, 41, -21, -7, 16, 52, 90, 112, 15, 81, -114, -29, 44, 25, -50, 109, 44, 121, 45, -63, -16, -124, -115, 79, 20, 16, 102, -98, -89, -40, 62, -104, 49, 0, -24, 123, -90, -122, -12, 39, -71, 9, 98, 98, 1, 53, -81, 108, -120, 38, -34, -99, -92, 17, 24, 33, 65, -65, -99, -72, 22, -89, 126, -10, 21, -33, 125, 2, -117, -74, -30, 15, 109, -102, 29, -17, -93, 48, 96, -59, -86, 124, 5, 114, 27, -98, -40 ]
The opinion of the court was delivered by Kaul, J.: Plaintiffs-appellants brought this action to test the reasonableness and legality of an ordinance enacted by defendant-appellee, City of Kansas City, Kansas, rezoning a tract of land owned by defendant-intervenor, Westborough Development, Inc. In their petition appellants describe themselves as citizens, residents, taxpayers and owners of property in the city and they allege that a number of them own real estate in an addition developed by West-borough Development, Inc., known as Normandy West, which lies adjacent to, and south of, the rezoned subject property owned by Westborough Development, Inc. For convenience the appellants will be referred to as plaintiffs; intervenor-Westborough Development, Inc., as Westborough, and Kansas City, Kansas, as the city. The district court after hearing the matter filed comprehensive findings of faot and conclusions of law and entered judgment for the city and intervenor. Plaintiffs filed this appeal. Plaintiffs reassert on appeal essentially the same grounds upon which the rezoning ordinance was challenged in the district court. Plaintiffs contentions may be resolved into three categories: first, the rezoning amounted to “spot zoning” and was, therefore, unreasonable; second, several alleged procedural deficiencies resulted in the illegality of the proceedings; and, third, intervenor-Westborough is by its conduct estopped from seeking a change of zoning classification on the subject property. The land in question consisted of a twenty-one acre tract situated in the northeasterly portion of a tract of seventy-two acres, all of which was originally owned by Westborough. The tract is bounded on the north by Parallel Avenue, a major thoroughfare, which is sometimes referred to as Parallel Parkway. To the south of the twenty-one acre subject tract, Westborough has developed the Normandy West Addition, which at the time of trial consisted of thirty-five homes and approximately eighty-five platted but unsold lots. Normandy West consists of a First and Second Addition and is described as a high-class residential neighborhood possessing features of more than ordinary value to a residential community. Plaintiffs, Dent, Fields, Hamilton, Klamrn and Strumillo reside in Normandy West. The zoning classification of Normandy West is “A-l” single family district. The rezoning ordinance challenged herein changed the zoning of the twenty-one acre traot from “A-l” to “E-2” which calls for low density, garden type apartments. The twenty-one acre tract involved has not been platted. The background history of the present controversy began as long ago as 1968 when Westborough filed petition No. 831 with the city requesting a change of zoning for the twenty-one acre tract to "E” apartment district. The planning commission recommended the change and the city commission accepted the recommendation by the adoption of Ordinance No. 47795 on April 3, 1969, changed the zoning to “E-2” apartment district. Ordinance No. 47795 was challenged in the district court by apparently the same parties as plaintiffs in the instant case. After a trial the district court found procedural defects in the adoption of Ordinance No. 47795, including the improper composition of the city planning commission at the session in which rezoning was recommended. The distriot court announced its decision determining Ordinance No. 47795 to be invalid on August 25, 1970. On the same day counsel for Westborough wrote a letter to the planning director requesting that a new petition be filed by the city in order to correct the previous procedural defects. On September 2, 1970, Robert J. Leanna, city director of planning, referred the matter by a memorandum to the board of city commissioners together with a petition by the planning department of the city pursuant to K. S. A. 1973 Supp. 12-708 seeking a change of zoning. In his memorandum Mr. Leanna stated that the planning staff recommends that the city commission consider having the attached petition reviewed by the legal department and filed with the city clerk without payment of a petition fee. In due course, the petition was referred by the city commission to the planning commission where several hearings were had culminating in a recommendation for rezoning by unanimous vote of the planning commission. After a hearing, on December 30, 1970, at which affected and interested parties appeared, the city commission enacted, by a two to one vote, Ordinance No. 49288 rezoning the subject property. This is the ordinance under attack herein. On January 29, 1970, plaintiffs filed their petition in this action against the city seeking a determination that the rezoning was unreasonable and unlawful and requesting injunctive relief. West-borough was granted leave to enter the case as an intervening defendant. We deem it unnecessary to restate in detail the rules governing procedural matters and the scope of judicial review in actions challenging zoning ordinances. In summary, our decisions hold it is incumbent upon those attacking the action of the governing body to show the unreasonableness of such action. The power of a court is limited to determining whether procedures in conformity with the law were employed and the reasonableness of such action. There is a presumption that the governing body acted reasonably and the court may not substitute its judgment for that of the governing body nor find the action thereof unreasonable unless clearly compelled to do so by the evidence. (Phillips v. Vieux, 210 Kan. 612, 504 P. 2d 196; Coughlin v. City of Topeka, 206 Kan. 552, 480 P. 2d 91; Waterstradt v. Board of Commissioners, 203 Kan. 317, 454 P. 2d 445; Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513; and Arkenberg v. City of Topeka, 197 Kan. 731, 421 P. 2d 213.) Plaintiffs’ first contention is that the change of zoning here involved is an unlawful application of “spot zoning.” The trial court’s findings of fact Nos. 15 and 16 deal specifically with the issue of “spot zoning.” They read: “15. The 21 acres concerned herein is situated at the intersection of 77th and Parallel in Kansas City, Kansas. Numerous commercial and multiple family developments are situated in close proximity to said land. The construction on this tract of apartments meeting ‘E-2’ requirements would constitute a buffer between Normandy West Subdivision and Parallel Avenue, a much traveled trafficway with several commercial installations situated nearby. “16. The evidence fails to establish that the change of zoning in question is unreasonable in light of the character of the neighborhood; is to any extent in derogation of the master and comprehensive plan of said City; will cause depreciation in value of the plaintiffs’ property and other surrounding properties; constitutes spot zoning; and was approved without proper regard for all of the factors entitled to consideration under the specific facts and circumstances of this case.” The record discloses ample evidence to support the findings recited above. Mr. Jack Forbes, an M. A. I. appraiser, described the subject property and adjacent developments. He testified that at the intersection of Parallel Avenue and 77th Street there is a retail development, including a pest control business, two service stations, a supermarket, and a Seven-Eleven store; and that proceeding south along 77th Street, adjacent to the subject property, there is a development consisting of a Presbyterian Home, and some office buildings. He further testified that immediately to the west of the subject property is an office building, nearing completion, and immediately to the west of the office building is a tract of land used as a combination office and storage yard by the Southwestern Bell Telephone Company. Forbes further testified that across tire street on the north side of Parallel Avenue, which runs along the north side of the subject tract, there is multiple family zoning and commercial use, and that Parallel Avenue is a four-lane street with a traffic count in excess of 6000 automobiles. He further testified that the highest and best use of the subject property would be commercial and/or apartment and that single family residential development would not be economically feasible. Forbes also stated that “E-2” zoning would not adversely affect residential properties lying to the south in Normandy West; and that “E” zoning is: "; . . the proper development for a step down or a buffer zoning type development to start with the high traffic count, traffic artery, with commercial or apartment and step down to residential.” Forbes also explained the buffer theory in zoning and development and testified concerning a number of examples of this type of zoning in Johnson County with which he was familiar; that he had on occasions appraised homes that backup to apartments in this type of development; and that the value of such homes has in no way been adversely affected by the existence of the apartment project. Much of the testimony of other witnesses was repetitive of that of Forbes. Louis Scherer, an officer of Westborough, testified that the “E-2” apartment development on the twenty-one acre tract would be an asset to Normandy West because as developers of land his people recognized the commercial trend of Parallel and believed that rather than downgrading toward the main artery (Parallel) where there is a lot of traffic, it would be better to upgrade it with this type of luxury apartments so that the same type of people would be attracted as those living in the subdivision. Scherer stated that the only type of houses that could be feasibly constructed on the subject property would be inexpensive houses which would be a detriment to Normandy West. Scherer said the apartments in the proposed project would have to rent for $350 monthly, the result being that Normandy West would be separated from the trafficway by these luxury type apartments occupied by the same type of people as those living in Normandy West. Joseph H. McDowell, a former mayor of the city, testified to the same effect that a buffer between the fxafficway and Normandy West was desirable because the subject tract was not suitable for single family homes which would be facing on Parallel Avenue, which was slated to be a trafficway. Robert Leanna, the city planning director, also confirmed the advantages of a buffer zone and said that it was good zoning and good planning in order to preserve the dignity of Normandy West Subdivision. Mr. Leanna described the “E-2” apartment classification as requiring 3500 square feet of land, per unit, which is three times lower density than that required by regular apartment zoning; and that the developers of this project would provide 5180 square feet, per unit, which is sixty percent lower density than required by the new “E-2” ordinance. Mr. Leanna testified that this was the first application, under the new “E-2” apartment zoning and would offer the kind of housing the community needed because Wyandotte County was losing large numbers of professional people who would like to live in Wyandotte County, but had moved to Johnson County because luxury apartments had not been available in Wyandotte County. He also testified that high quality apartments return more in the way of taxes than they require for services which is an advantage to the community as a whole. There was some conflicting testimony by plaintiffs, who are residents of Normandy West, that they felt that the rezoning would adversely affect the value of their properties and that they had understood that all of the Westborough land would be restricted, subject to family dwellings. Richard W. Walsh, mayor of Kansas City, who now owns a home in Normandy West, testified that, in his opinion, the dty was well-saturated with apartments and that he seriously doubted that the rezoning would be beneficial to the single family nature of that portion of the community. Mr. Dent testified that he protested the apartment zoning because there was already considerable congestion caused by apartments in the immediate area; and further that he had been led to understand that the entire area was for single family development. He admitted, however, that he knew Westborough owned seventy-one acres, but did not know the amount that had been platted. Mr. Klamm and Mr. Fields testified that they were led to believe there would be no apartment zoning. Mr. Fields knew that the twenty-one acre subject tract had not been platted. Generally, the evidence went to the issue of the reasonableness of the rezoning, rather than tending to establish it as “spot zoning.” The situation confronting the trial court was quite analogous to that posed in Arkenberg v. City of Topeka, 197 Kan. 731, 421 P. 2d 213, wherein it is stated: “. . . Basically, the controversy resolves itself to this: Certain residents owning their homes in the area object to the building of the proposed apartment; they have stated their reasons; these reasons have been taken into account by the zoning authorities and, in the interest of the entire city, deemed insufficient to prevent the proposed rezoning. Zoning is not to be based upon a plebiscite of the neighbors. Their wishes are to be considered but the final ruling is to be governed by the basic consideration of the benefit or harm involved to the community at large (58 Am. Jur., Zoning, § 206). “The most that could be said from the standpoint of plaintiff and those he represents is that the matter may be fairly debatable. That being so, the court may not substitute its judgment for that of the city in order to change the decision on the debate. . . .” (p.738.) We believe the trial court’s findings concerning “spot zoning” are fully supported by the evidence and are manifestly correct. In the first place the subject tract can hardly be classified as a small parcel of land; second, the record is replete with testimony that buffer type zoning in this instance is reasonable and desirable and; third, there is evidence of benefit to the community as a whole. In Waterstradt v. Board of Commissioners, 203 Kan. 317, 454 P. 2d 445, wherein a rezoning ordinance was challenged, we quoted these definitions of “spot zoning:” “'An amendatory ordinance which selects one lot, owned by one person, and creates for it a particular zoning classification different from that of the surrounding property, constitutes “spot zoning.” Parker v. Rash (1951) 314 Ky 609, 236 SW2d 687. “Spot zoning,” as usually defined, signifies a carving out of one or more properties located in a given use district and reclassifying them in a different use district. Chayt v. Maryland Jockey Club (1941) 179 Md. 390, 18 A2d 856.’" (p. 321.) More recently we considered “spot zoning” in the case of Phillips v. Vieux, supra; where, after citing Arkenberg v. City of Topeka, supra, and Coughlin v. City of Topeka, supra, we said: “. . . The general purport of these cases is that ‘spot zoning’ may be unreasonable and invalid when it singles out a small parcel of land for use classified differently from the surrounding area, primarily for the benefit of the owner of the property and to the detriment of the area and other owners therein. On the other hand, ‘spot zoning’ is not unreasonable and invalid if it is related to the general welfare and the best interests of the community-at-large. . . .” (p. 615.) In the portion of their brief devoted to this point plaintiffs further argue that the rezoning was a deviation from the city’s comprehensive land use plan. On this point planning director Leanna testified: “• • • the term Master Plan is a rather big term, it is basically a plan showing suggested land uses that would be appropriate within the community. The Master Plan does not constitute zoning of the land.” In Coughlin v. City of Topeka, supra, we said: “A city is not unalterably bound by a comprehensive land use plan. This is true whether the plan is merely recommended to the city or adopted by ordinance. . . .” (p. 557.) After a careful examination of the record we find no reason to disturb the trial court’s findings concerning “spot zoning” or the reasonableness of the ordinance. For their second point on appeal plaintiffs contend the city failed in several particulars to follow the provisions of K. S. A. 1973 Supp. 12-708 which delineates procedures relating to the filing of a zoning petition, the authority of the city, requirements of notice, and the function and makeup of a planning commission. Because of these alleged procedural deficiencies plaintiffs say the city had no jurisdiction to change the zoning classification of the subject property. First, plaintiffs contend the petition is not lawfully filed because of failure to pay a filing fee and that the city could not properly file the petition. The trial court specifically found against plaintiffs on both points, and we believe correctly so. Authority for the city’s action is found in K. S. A. 1973 Supp. 12-708, which reads in pertinent part: “. . . The governing body may from time to time supplement, change or generally revise the boundaries or regulations contained in such zoning ordinance by amendment. A proposal for such amendment may be initiated by the governing body, the planning commission or upon application of the owner of tlie property affected. . . .” Plaintiffs argue the language of the statute quoted above somehow limits the authority of the city to the filing of a petition only in instances where the general neighborhood is being rezoned. We are unable to read any such limitation in the statute. The statute is clearly phrased in the alternative and permits the initiation of a proposed zoning change by either the governing body, the planning commission, or an affected property owner. With respect to plaintiffs’ contention that failure to pay a filing fee invalidated the petition, the pertinent part of the statute reads: “. . . The governing body may establish reasonable fees to be paid in advance by the owner ,of any property at the time of making application for a change in zoning of the same. . . As can be seen from the language employed, the establishment of a filing fee is a permissive provision of the statute and is directed only to the owner of property making an application for a change in zoning. We cannot read into the statute any requirement that the city, when it is the applicant, must pay itself a fee, and such a requirement would amount to nothing more than a mere formality. Plaintiffs further argue that the petition was not properly filed because there was no showing of a vote by the city commission or planning commission prior to the filing. This argument merits little consideration. The petition was considered by the city commission at its meeting on September 8, 1970, and was referred to the planning commission as provided by 12-708. This action of the city commission, as found by the trial court, is persuasive that the governing body considered the petition to be then authorized by it. In due course, the petition was voted upon by both the planning commission and the city commission. The subsequent approval by the planning commission and the city commission serves as satisfactory evidence; that the city commission approved of the filing of the petition. Plaintiffs next contend that improper notices were given of planning commission meetings; and further that the planning commission was not lawfully constituted at the time it approved the rezoning application. Concerning these contentions the trial court specifically found: “9. Proper notice, both by publication and by mailing, was duly given by the Planning Commission for a hearing on Petition No. 1000 to be held October 12, 1970. Three days prior thereto the Court in Case No. 33707-B issued an order restraining the defendant City from consideration of or acting upon Petition No. 1000. The Planning Commission thus took no action thereon at its meeting except to vote unanimously to hold over said petition. The said restraining order was dissolved on October 29,1970. “10. Petition No. 1000 was considered by the Planning Commission at its meeting on November 9, 1970, at which a quorum was present. Westborough appeared in behalf of the petition by Mr. Scherer and also by Mr. Powers, its attorney. Plaintiffs Fields and Klamm appeared in opposition. The Commission voted unanimously to approve the petition. Notice of such hearing was not published; notice by mail was given to affected property owners. A member of the Plaxming Commission resigned after November 9 and was not replaced prior to December 14,1970. “11. Petition No. 1000 was again considered by the Planning Commission at its meeting on December 14, 1970, at which a quorum was present. Proper notice of a public hearing on said date, both by publication and mailing, was given. The giving of such notice resulted from an opinion of the City Attorney to the effect that (a) inasmuch as the Planning Commission had not continued its hearing on Petition No. 1000 from October 12, 1970, (notice of which hearing had been given by publication and by mailing as aforesaid) to a definite time, a further publication notice should be made, (b) the Planning Commission has the authority to continue such a hearing to a definite time, and (c) the City itself may initiate a change of zone petition. “12. At tire meeting of December 14, 1970, Messrs. Scherer and Powers appeared on behalf of the petition and Messrs. Fields and Klamm appeared in opposition. Again the Planning Commission voted unanimously to approve the petition. “13. Petition No. 1000 was considered, by the Board of City Commissioners at its recessed regular meeting on December 30, 1970. After hearing again from the same proponents and opponents, the Board approved the zoning change and in regular session on December 31, 1970, adopted Ordinance No. 49288, which became effective on publication which was had on January 6, 1971. “14. With respect to the publication notice of hearing and the mailing of notice of hearing to affected property owners for the meeting of October 12, 1970, the requirements of K. S. A. 12-708 as amended were met. The same is true of the mailed notice of the meetings of November 9 and December 14 and the additional publication notice re the December 14 meeting. The evidence does not establish a lack of reasonable effort on the part of the Planning Commission in ascertaining the current mailing address of property owners entitled to notice by mail.” In conclusion of law No. 3 the trial court resolved issues raised concerning procedures in this fashion: “3. K. S. A. 12-708 as amended authorizes a City Planning Commission to hold a hearing after having given the prescribed notice, to adjourn such hearing from time to time and then make recommendations to the City Commission. The “holding over’ of Petition No. 1000 from the October 12, 1970 meeting, was nothing more than an adjournment of the hearing thereon -until its next regular meeting following the removal of its disability to act occasioned by the plaintiffs’ restraining order. Such disability was removed before its regular meeting on November 9, 1970. The procedural requirements of said statute were met with respect to the meeting of November 9. Nevertheless an additional publication notice and notice by mail was effected so that said petition could be brought on for hearing on December 14, 1970. The procedural requirements for holding the meeting of December 14 were likewise met. Whether the hearing on December 14 was cumulative only or was required by strict construction of the statute, the fact that a replacement for the resigned member had not been named by December 14 would not render the Commission’s actions void or voidable.” The findings of the trial court with respect to notices of planning commission meetings are fully supported by testimony and exhibits reproduced in the record and we believe its conclusions of law resolve the issues in conformity with procedures directed by the statute. The principal argument of plaintiffs concerning notice given by the planning commission is that notice by mail should have been delivered to owners of all property within 200 feet of the boundaries of the subject property; and that such 200 feet should be measured by excluding public streets and ways. The record reflects that the calculation of the 200 feet perimeter in the instant case did not exclude streets. Plaintiffs concede that this written notice provision of the statute which reads: ". . . written notice of such proposed amendment shall be mailed to all owners of lands located within two hundred (200) feet of the area proposed to be altered and an opportunity granted to interested parties to be heard. . . .” (12-708.) does not require exclusion of streets in computing the 200 feet distance from perimeter. Plaintiffs argue, however, that a subsequent provision, appearing in the last paragraph of the statute, must be read into the written notice provision above quoted. The provision referred to, which appears in the last paragraph of the statute, does not pertain to the written notice first above mentioned, but concerns the provisions of the statute requiring a three-fourths vote of the city commission for the approval of a zoning ordinance if a protest is filed in the office of the city clerk. The provision relates to the enumeration requirements of owners of twenty percent or more of the owners of the property proposed to be rezoned or by owners of twenty percent of the total area within 200 feet of the boundaries of the subject property measured by excluding public streets. The provisions of the statute pertaining to the requirements of a proper protest are separate and distinct and have nothing to do with the written notice requirements pertaining to the planning commission. Plaintiffs’ final procedural argument is that the planning commission was not properly constituted. This argument is based upon the fact that a member of the planning commission resigned after November 9 and was not replaced prior to the December 14 meeting, at which the planning commission voted unanimously to approve the petition. This is the matter referred to by the trial court finding No. 10 and conclusion of law No. 6. Plaintiffs argue that the ordinance establishing the planning commission (Sec. 27-16) is mandatory and requires a fifteen member planning commission. The planning commission ordinance is authorized by K. S. A. 12-701 and K. S. A. 1973 Supp. 12-702. Under 12-701 the governing body of any city may create a city planning commission which shall, under 12-702, consist of not less than seven nor more than fifteen members, two of whom shall reside outside of, but within three miles of, the corporate limits of the city. The record shows that the remaining fourteen members of the planning commission were present at the meeting on December 14. Concerning a quorum 12-708 provides as follows: “. . . For action on zoning amendments, a quorum of the planning commission is more than one-half of all the members. . . Since fourteen members were present a quorum was constituted in any event. We would further note that the planning commission had previously considered the same petition on several occasions and voted unanimously in favor thereof on all such occasions; and that the trial court found that the procedural notice requirements were satisfied as to tire November 9 planning commission meeting. We are fully cognizant of the rule announced in Koppel v. City of Fairway, 189 Kan. 710, 371 P. 2d 113, that in the enactment of a zoning ordinance the procedural provisions of the statute must be strictly followed. From the precautions taken by the city in the instant case we believe the city had the rule in mind. Obviously, the trial court carefully considered all of the procedural issues presented and we find no reason shown to disturb its findings and conclusions in this regard. The third and final point raised by plaintiffs is that the intervenor Westborough is and should be estopped from seeking a change of zoning classification. Plaintiffs rest their contention of estoppel on two arguments. First, false representations of officers of Westborough and, second, that construction of apartments on the subject land would be in contravention of the “Articles of Incorporation of the Normandy West Homes Association and the Plomes Association Declaration.” After hearing the evidence the trial court made findings of fact concerning these points: “19. None of the property included in Petition No. 1000 is described in the Normandy West Homes Association Declaration dated March 5, 1965. No part of said 21 acre tract is located in the Normandy West Subdivision. “20. The evidence fails to establish that Westborough or Scherer or other Westborough agents made false or misleading representations to the plaintiffs either as to the development and planned construction on the entire 72 acre tract or on the 21 acre tract in question. Westborough has continued to develop Normandy West as a high-type single-family residential area. The evidence does not establish conduct on the part of Westborough or its agents such as would estop it from development of said 21 acres by the construction of luxury type apartments meeting ‘E-2’ requirements, if this is properly an issue before the Court under the pleadings herein.” In response to plaintiffs’ assertion of estoppel defendants first contend that it presents a new issue in this court, not having been raised by the pleadings and is not properly before us. We cannot agree with defendants’ position in this regard since our examination of plaintiffs’ petition reveals that the elements of estoppel were set forth; and further the pretrial order indicates recognition that the issue was raised. In view of the trial court’s findings — quoted above — which we believe are supported by the record, plaintiffs’ contention of estoppel cannot be maintained. Plaintiffs rely primarily on the testimony of plaintiffs, Klamm, Fields, and Dent as a basis for establishing representations on the part of Westborough officers which would work estoppel against it. Mr. Klamm, on direct examination, testified concerning several conversations with Mr. Scherer and Mr. Schoenfelder in which he inquired about the development in back of his house and was assured there was not going to be any businesses or apartments. Klamm further testified that he was assured the land to the rear of his residence was zoned for single family dwelling and would be kept in such classification. On cross-examination it was brought out that the conversations were not in reference to the twenty-one acre subject tract, but the lots south of, or to the rear of, Klamm’s residence in Normandy West. These lots remain single family residential zoning and are not affected in this case. Likewise, an examination of the testimony of Mr. Fields reveals that in the conversations described by him there was no specific reference made to the twenty-one acre tract in question here. Mr. Dent testified that he saw a plat which encompassed the entire area; and that the only developed part was the area where his lot was purchased. He did not know the exact amount of the seventy-one acres owned by Westborough that had been platted. Mr. Scherer testified that the subject twenty-one acres had never been a part of the Normandy West Subdivision; and that he never recalled telling anyone what was the intended use of the twenty-one acres involved here. He testified that there was room for expansion of Normandy West; that they had fifty acres to work with; and that this fifty acres had nothing to do with the twenty-one acres here involved. With respect to the “Articles of Incorporation of the Normandy West Homes Association and the Homes Association Declaration,” both concern Normandy West Subdivision and have nothing to do with the subject property. Mr. Scherer testified that Lot 1, Block 1, Normandy West was originally included for rezoning by mistake and was later deleted. Since the Articles of Incorporation and Declaration apply only to Normandy West, rezoning of the twenty-one acre subject tract cannot be in contravention of either of the two instruments as found by the trial court in finding No. 19. In their argument in support of estoppel plaintiffs further main tain that the doctrine of “reciprocal negative easement” is applicable. To our knowledge application of this doctrine has not heretofore been considered by this court. Our research reveals that the doctrine comes into play where the owner of two or more lots, situated near one another conveys one of the lots with express building restrictions of benefit to the land retained by the grantor, and that in such case the servitude becomes mutual, and during the period of restraint, the grantor and owner of the lot retained may do nothing that is forbidden to the owner of the lot sold. Such an implied restriction upon the use of the lot retained by the grantor is said to be a reciprocal negative easement which is enforceable against the grantor or a subsequent purchaser of the retained lot. (20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, § 173; Lanski v. Montealegre, 361 Mich. 44, 104 N. W. 2d 772; McQuade v. Wilcox, 215 Mich. 302, 183 N. W. 771; and Price et al., Aplnts., v. Anderson et al., 358 Pa. 209, 56 A. 2d 215.) Our examination of the authorities on the subject reveals that it is not applicable in a case such as that at bar where the land in question is not a pail of a subdivision in which the first lot or lots were sold; and particularly where the first lot or lots were part of a platted subdivision and separate from unplatted restricted lands upon which the implied restriction is sought to be imposed. (McCandless v. Burns, Appellant, 377 Pa. 18, 104 A. 2d 123; and McCurdy v. Standard Realty Corporation, 295 Ky. 587, 175 S. W. 2d 28.) A careful examination of the record before us reveals no reason to disturb the findings and conclusion of the trial court upon any of the grounds urged. The judgment is affirmed.	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The opinion of the court was delivered by Harman, C.: This is a partition action in which rights of a tenant became involved. Construction and application of termi nation clauses in a lease form the principal issue. Trial to the court resulted in judgment adverse to the tenant and he has appealed. There is little dispute as to the facts. L. E. (Eugene) Shawler, William J. Shawler and L. J. Shawler owned as tenants in common a tract of land of approximately 875 acres in Trego county. The property consisted of 320 acres of tillable crop land, 375 acres pasture land and the remainder largely considered waste land. Defendant-appellant Phil Funk commenced farming the land in 1948 under an oral lease. He continued so doing until 1960 at which time the parties entered into a written lease of the property for a period of one year beginning August 1, 1960, and ending July 31, 1961. The lease is said to be in form customarily used in that area for agricultural tracts. It provided for one-third crop rent and $1.50 per acre for the pasture land to be paid the owners. No rent was to be paid for the waste land. Paragraph eight of die lease, the crux of this action, provided: “This lease is made subject to a sale of the premises, and in case of a sale the purchaser desiring possession, the lessor or purchaser will be entitled to possession on these terms: Where the land is rented for a money rental, by returning to the lessee a sum in proportion to the whole as shall equal the unexpired time of the term; and where land is rented for grain rent the amount to be paid for possession will be estimated by three men, one to be chosen by the lessor, one by the lessee and the third by these two.” Thereafter the parties developed a practice of extensions of the lease by letters signed by the landowners and accepted by the tenant Funk (during this period L. J. Shawler died and his widow, DeMaris Shawler, succeeded to his interest). The first such letter, dated March 19, 1961, by the owners simply stated: “We would like to extend the 1960-61 lease, to August 1st 1962.” The second letter, dated March 19, 1962, was in like language, extending the 1960-61 lease for an additional one year period or until August 1, 1963. The third letter, dated February 8, 1963, was as follows: “We, the undersigned would like to extend the 1960-61 lease, to August 1, 1965. In the event that either party does not wish to continue this lease, one year’s notice will be given.” To be noted are die facts this lease was for two years and it contained a proviso regarding notice of intention to terminate. The next letter, February 12, 1965, was identical to the last except it provided a three year term ending August 1, 1968. The fifth letter, May 22, 1968, contained the same terms as the two preceding letters except it stated a two year period ending August 1, 1970, and it increased the pasture rent to $2.50 per acre. Noteworthy at this point is the fact all these letters referred to an extension of the “1960-61 lease”. The next extension letter, dated March 12, 1970, was as follows: “We the undersigned, would like to extend the 1969-70 lease to August 1, 1972. In the event that either party does not wish to continue this lease, one year notice will be given in advance.” To be noted in the above is the reference to. the 1969-70 lease rather than the 1960-61 lease as before. The final extension letter, dated March 17, 1972, and the one under which the tenant now claims, likewise stated the owners’ desire to extend “the 1969-70 lease”, this time for a two year period ending August 1, 1974, and it contained the same termination notice proviso. The next significant event occurred May 31, 1972, at which time L. E. (Eugene) Shawler entered into a contract of sale agreement with plaintiff-appellee Dale Davis whereby he agreed to sell his undivided one-third interest in the tract to Davis. The sale contract was in usual form, providing for a down payment upon execution of the contract and the remainder of the purchase price upon delivery of abstract showing merchantable title. It contained no express provision as to possession but did include this proviso: “(c) Seller agrees to pay up to and including $250.00 towards the legal expense in order for buyer to obtain possession on or before September 1, 1972, or as soon thereafter as is practicable.” On July 5, 1972, Davis’ attorney wrote a letter to the tenant Funk advising of Davis’ purchase of L. E. Shawler’s interest in the land, calling attention to the provisions of paragraph eight of the 1960-61 lease and requesting possession of the land pursuant thereto on or before September 1, 1972. Funk received the letter July 7, 1972. Upon advice of counsel he declined to surrender possession and continued farming as before. Thereafter he did summer fallowing work, planted 150 acres of wheat and pastured cattle on the grass. He had done some summer fallowing prior to July 7, 1972. Funk received no other notice of termination from anyone. Funk paid his pasture rent due August 1, 1972, for tire year ending August 1, 1973, to the two Shawler owners but Davis rejected Funk’s tender for his share. Plaintiff Davis filed this partition action August 21, 1972, naming Funk a party defendant and asking that his interest be determined. Pleadings were filed by Funk and the three Shawlers, joining issue as to Funk’s rights as tenant. On November 22, 1972, L. E. Shawler conveyed his interest in the property to Davis by warranty deed pursuant to the contract of sale. Davis previously had received payment for his share of the 1972 wheat crop. On January 24, 1973, the trial court decreed partition among the three owners, Davis, William J. Shawler and DeMaris Shawler, subject to the tenant’s rights but stayed further proceedings in partition pending determination of those rights. The trial court held an evidentiary hearing February 22, 1973, on the tenant’s rights and made its ruling March 1, 1973. It first ruled there was no ambiguity in the lease arrangement governing the parties’ rights and that paragraph eight in the 1960-61 written lease was still in effect May 31, 1972, when plaintiff entered into the contract of sale with L. E. Shawler; that execution of this contract amounted to a completed sale of the premises, the contract being fully performed with the subsequent delivery of the deed to plaintiff; the sale was subject to the rights of the tenant under the lease; plaintiff as purchaser acquired the right to terminate the tenant’s possession under paragraph eight, which right he exercised by letter dated July 5, 1972. The court commented that owners of real estate by tenancy in common are each equally entitled to all rights of ownership, control and possession in the realty. It held that plaintiff’s July 5th letter terminated defendant Funk’s tenancy on July 7, 1972, the date of its receipt, Funk was required to surrender possession and, under the doctrine expressed in Fox v. Flick, 166 Kan. 533, 203 P. 2d 186, the only rights he had in the land were to harvest the growing milo crop, to be paid the reasonable value of summer fallowing work done by him prior to July 7, 1972 (determined to be $650.00), and to remove certain stock tanks, corrals and electric fencing installed by him (the 1971-72 wheat crop had been harvested prior to July 7, 1972, but the 1972-73 wheat crop had not yet been planted). The court declined to order any reimbursement for advance pasture rent paid by Funk to the two Shawler owners. Defendant Funk promptly filed a motion to alter and amend the judgment and for new trial. On the hearing of his motion April 10, 1973, it was disclosed that on April 4, 1973, William J. Shawler and DeMaris Shawler had each sold and conveyed his one-third interest in the land in question to plaintiff Davis. The court overruled defendant’s posttrial motions and again declined to order reimbursement for advance rent. Defendant filed notice of appeal but did not post supersedeas bond in the amount of $25,000 as fixed by the trial court. Thereafter defendant, in compliance with an order of execution directed to the sheriff and returned under date of April 25, 1973, removed his personal property from the premises and surrendered possession to plaintiff Appellant Funk asserts error in several respects, not all of which need be noticed in view of our ultimate disposition of the appeal. We first consider appellant’s assertion he was entitled to notice of termination one year in advance before he could be ousted from possession. He contends that by reason of the last two letter agreements the parties “divorced” themselves entirely from the 1960-61 lease, thereby eliminating paragraph eight as a factor. He argues the parties had agreed on new terms which abrogated the the 1960-61 lease, as evidenced by their reference in the last two letters to the “1969-70 lease” rather than to the “1960-61 lease” as before. We cannot agree. Where a series of writings relating to tenancy refer to each other and to a prior written lease of the same property all are to be construed together in determining the intent of the parties. The letter dealing with the 1969-70 tenancy (actually the 1968-70 tenancy) for the first time increased the amount of pasture rent named in the 1960-61 written lease. If that was going to be the agreed rent thereafter, then reference would have to be made to the 1969-70 lease rather than the 1960-61 agreement. The 1969-70 lease did specifically refer to the 1960-61 lease and, as modified, the latter thereby became incorporated into the last two letter agreements; otherwise, an incomplete written expression of the parties intent in several respects would have resulted. This conclusion virtually disposes of appellant’s further argument that the reference in the last two letter agreements to the 1969-70 lease creates an ambiguity which should be resolved in his favor. There simply is no ambiguity in the total leasing arrangement and therefore no occasion for parol evidence to come into play. Appellant also urges that even though it be held that the last two letter agreements were extensions of the 1960-61 lease, then paragraph eight of the old lease is inconsistent with and must yield to the later proviso for termination. He adds that enforcement of paragraph eight would be inequitable. That which appellant really seeks here is avoidance of the rules expressed in Nance v. Mullikin, 131 Kan. 828, 293 Pac. 490, and other authority. In Nance one paragraph of a lease stated that a purchaser of the land who desired its possession might terminate die lease and reimburse the tenant; a later paragraph specified the term of the lease, the work to be done and the rent to be paid. In an action resisting a purchaser who desired possession it was urged these paragraphs were inconsistent and the later one as to duration should tíierefore control. In rejecting these contentions this court stated: “The old rule as to giving preference, in the construction of a written instrument, to the last expression therein, where there is an apparent inconsistency or lack of harmony, has been almost abrogated and is not now the most approved rule by which the real intention of the parties to the written instrument is reached. The construction should be based upon the intention of the parties, to be determined from the sense of the entire contract.” (p. 831.) The ultimate holding in Nance was: “Where a purchaser of real estate accepts a deed stating it is ‘subject to a farm lease now on the place’ and the lease definitely provides that in case of sale of the premises during the continuance of the lease and the purchaser desiring possession, the lessee agrees to surrender the same at once, and further provides for his compensation for growing and immature crops, the purchaser, by taking the conveyance subject to such lease, is not limited to the rights and privileges of the lessor under the terms of the lease, but has the additional right and privilege specifically accorded by the terms of the lease to the purchaser. “The terms of a lease providing for the immediate surrender of possession of the premises to a purchaser if he desires possession thereof are not inconsistent with a further provision as to duration of term, work to be done and rent to be paid.” (Syl. ¶¶ 1, 2.) The court further declared the fact the compensation provided in the termination clause may be inadequate did not make such provision inconsistent with the one specifying length of time, work to be done and rent to be paid. In the case at bar it is not necessary for us to construe the proviso for one year’s notice but there is no inconsistency between it and the provisions of paragraph eight — in the event of sale to a purchaser desiring possession there is no necessity for any other form of notice of termination. Paragraph eight was for the purpose of creating more attractive sale terms of the property and the notice proviso was designed to promote security of tenure for both owner and tenant where sale had not occurred. The trial cout correctly ruled the parties’ rights were governed by and subject to paragraph eight of the 1960-61 lease. Appellant next argues that even though it be held that paragraph eight controls the rights of the parties, the sale of an undivided one-third interest in the property was not a “sale of the premises” as contemplated therein. His argument simply is that such a provision contemplates a sale of the entire premises. Appellee Davis responds only that the trial court found as a fact that there had been a sale and the evidence supports the finding. We have no precedent of our own on the precise legal question but it has received consideration elsewhere. The overall rule is expressed in 51C CJS, Landlord & Tenant, § 93 (3) b. thus: “Under a provision in a lease for its termination on a sale of the premises, the character of sale necessary to render the provision operative depends on a proper construction of the lease as a whole, viewed in the light of the intention of the parties.” (p. 305.) In Ewing v. Miles, 12 Tex. Civ. App. 19, 33 S. W. 235, (writ refused) it was held that a sale by one joint owner of an undivided one-half interest in leased realty did not defeat the right of a tenant to renew his term under a proviso that he could do so unless the “lessors” should sell the “said premises” and in case of sale he should surrender possession thereof to the purchaser at the end of the contract year. The court held that in order to defeat the tenant’s right of renewal there must be a sale by the lessors of the entire premises. The same rule was applied in Frankfurt Finance Co. v. Treadaway, 159 S. W. 2d 514 (Tex. Civ. App.) (writ refused) although under a somewhat different factual posture. Agor v. Pitale, 1 App. Div. 2d 1020, 151 N. Y. S. 2d 463, involved a summary proceeding to recover possession of realty on the ground the tenants were holdovers. In reversing a trial corut order awarding the landlords delivery of possession the appellate court held: “The provision in the lease giving the landlords the right to cancel ‘[i]n the event of a bona fide sale of the property hereby leased' did not become operative upon die sale of five-sevenths of the demised premises.” (p. 1020.) We are cited to no other authority on the precise issue and find none but we are content with the result reached in the cases mentioned. It is horn-book law, as stated by the trial court, that each tenant in common is entitled to equal use and possession of the property. However, this means no cotenant has the right to exclusive use of the property and his individual right of use is limited by the requirement that such use does not operate to exclude other tenants from enjoying their equal privileges (see 4 Thompson on Real Property, 1961 Replacement, § 1793). Hence no cotenant can oust his co-owner’s lessee. Other limitations on the authority of a tenant in common are expressed in 86 CJS, Tenancy in Common, § 113 c. as follows: “Ordinarily, a tenant in common may not bind his cotenant by modifying or terminating a lease on the common property without the consent of the cotenant. “. . . Any number less than all of the tenants in common of a particular piece of property cannot, without the authority of their cotenants, enforce a forfeiture of a lease of the common property. . . . “Rescission or surrender. Any number of the cotenants less than all of them are incompetent to bind their nonassenting cotenants by the rescission of a lease of the common property. . . .” (pp. 519-520.) Here all parties throughout their leasing arrangement treated the premises as a single entity with a single consideration paid for its possession. Until the sale to appellee Davis there apparently were no problems among the co-owners as to management and control of the property, at least none which were irresolvable short of the remedy of partition. After the sale by L. E. Shawler the remaining Shawlers who did not sell were content to have appellant remain in possession under the lease and, although it is of little or no consequence, they in fact considered there had not been a sale of the premises within the meaning of paragraph eight. The interest of these two lessor-owners remained exaotly the same after the sale as it was before. Everything considered, we conclude the parties had in mind in paragraph eight of the lease in making the tenant’s possession subject to “a sale of the premises” a sale of the entire premises as distinguished from a sale of an -undivided fractional share therein, and we so hold. We note in passing appellee Davis and his vendor evidently had misgivings about voluntary surrender of the premises by appellant prior to September 1, 1972, as indicated by paragraph (c) in their contract of sale providing for the seller’s payment of $250.00 toward legal expense in securing that possession. It must be held the trial court erred in treating the sale of an undivided one-third interest as a sale of the premises within the meaning of paragraph eight and in ordering appellant’s ouster from the premises as it did. This conclusion renders it unnecessary to consider appellant’s further contention that Davis’ termination letter of July 5, 1972, was ineffective because at that time he was only a conditional vendee under a contract of sale, not having received a deed until November 22, 1972. Although the sale of the undivided L. E. Shawler interest in 1972 did not make paragraph eight operative, that fact does not dispose of this litigation. As already stated, on April 10, 1973, while the trial court still had jurisdiction of this action, it was disclosed that the two remaining Shawler owners had conveyed their interest in the leased property to appellee Davis, thus making him sole owner. We think this, coupled with the previous sale amounted to “a sale of the premises” as of April 4, 1973; Davis as purchaser was still seeking possession, which facts made paragraph eight operative. In other words Davis was then entitled to possession, subject to appellant s right of reimbursement under paragraph eight to be determined upon such possession, reimbursement to include an accounting for advance pasture rent paid to appellees William J. Shawler and DeMaris Shawler. The judgment is reversed and the cause remanded for further proceedings in accord with the views herein expressed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Fromme, J.: This action was brought on a comprehensive liability insurance policy to recover the amount of a judgment previously entered against the plaintiff, Adventure Line Manufacturing Company, Inc. Adventure Line paid the judgment and now sues its insurance company, The Western Casualty and Surety Company. Western Casualty defends the action on the basis of an exclusionary clause in the policy which excludes coverage on property “in the care, custody or control of the insured”. The case-was tried to the court below on a stipulated record and the court entered judgment in favor of the defendant, Western Casualty. The plaintiff, Adventure Line, appeals. This is the third action arising from the fire which destroyed the manufacturing plant of Adventure Line in Parsons, Kansas, on December 9,1968. The first action involved the question of coverage under this same policy. The case was brought by the employees of Adventure Line to recover the value of their personal tools destroyed in the fire. In Arnold v. Western Casualty & Surety Co., 209 Kan. 80, 495 P. 2d 1007, it was held the employees’ tools were not in the care, custody or control of Adventure Line when the fire broke out and that the insurance company was liable under its policy for the employees’ personal tools. The second action involved the tort liability of Adventure line for the loss of a semi-trailer owned by Campbell Sixty-Six Express, Inc. which was parked at a loading dock on the plant premises of Adventure Line. The semi-trailer was destroyed by fire. In Campbell Sixty-Six Express, Inc. v. Adventure Line Mfg. Co. Inc., 209 Kan. 357, 496 P. 2d 1351, Adventure Line was held liable for the loss of the semi-trailer based on negligence in starting the fire and failing to maintain operable fire extinguishers on the premises. It is the amount of this judgment which Adventure Line now seeks to recover back from the insurance company. The present case was tried by the lower court upon a stipulation and agreement which reads as follows: “It is stipulated and agreed by and between the parties, through their respective counsel of record, as follows: “1. The policy of liability insurance involved in this proceeding was in force and effect on the date of the loss, December 9, 1968. “2. On said date, a Campbell Sixty-Six trailer was destroyed by fire on plaintiff’s plant premises covered by said policy of liability insurance. “3. The damage to said trailer was recovered against the plaintiff in the sum of $5,091.47, plus court costs in the sum of $651.01 and accumulated interest in the sum of $79.52 for a total recover of $5,822.00. Said sum was paid in to the Clerk of this corut in satisfaction thereof. “4. Timely demand for payment of said sum was made upon defendant by plaintiff. Payment was refused by defendant based upon an exclusionary clause in its policy of liability insurance. “5. The defendant reserved its right in defending Adventure Line in the suit brought against it by Campbell Sixty-Six for the loss of its trailer. The court may consider the evidence offered and as set forth in the transcript of testimony in the case of Campbell Sixty-Six vs. Adventure Line Manufacturing Company, Case No. 10,384, including the pleadings, and the record the same to be considered as evidence and part of the record in this case, together with the decision of the Supreme Corut of the State of Kansas in the appeal thereof, being reported in Kansas Reports at 209 Kan. 357. “The foregoing stipulation and agreement is herewith jointly submitted and approved by the respective attorneys of record for the parties to this proceeding.” The defense raised by Western Casualty is based upon the following exclusionary clause in the policy: “This policy does not apply: “(h) Under coverage C, to property damage to . . . property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control, . . .” The liability of the company alleged by Adventure Line is based on coverage C in the policy, “property damage caused by accident and'arising out of other than ownership, maintenance or use of automobiles.” After a trial to the court judgment was entered in favor of Western Casualty and against Adventure Line on the following findings: “. . . [T]he court . . . finds generally in favor of defendant and against the plaintiff. “The court specifically finds from the evidence and record that at the time the Campbell Sixty-Six Express trailer was destroyed by fire it was on the property of plaintiff as a business invitee and by reason thereof plaintiff’s claim falls within the exclusionary provisions of the insurance policy issued by defendant. “The court finds that plaintiff should take naught by its action herein and that plaintiff should pay the costs.” On appeal Adventure Line points out that the controlling question which should have been decided by the trial court was whether the semi-trailer was “in the care, custody or control” of Adventure Line at the time it was destroyed by fire. If it was, there was no coverage under the policy. The trial court did make a general finding of fact in favor of the defendant. Such a general finding by the trial court raises a presumption that the trial court found all facts necessary to sustain the judgment rendered. (Cason v. Geis Irrigation Co., 211 Kan. 406, Syl. ¶ 3, 507 P. 2d 295.) We presume, therefore, that the trial court did find that the semitrailer was in the care, custody or control of Adventure Line when the fire occurred. Appellant, Adventure Line, calls our attention to paragraph 2 of the syllabus in Southards v. Central Plains Ins. Co., 201 Kan. 499, 441 P. 2d 808, which reads: “Where an insurer seeks to avoid liability under its policy on the ground that the circumstances fall within an exception set out in the policy, the burden is on the insurer to establish the facts which bring the case within the specified exception.” (Syl. ¶ 2.) Appellant further quotes at length from the case of Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P. 2d 681, which involves coverage under a similar policy of insurance. In Buchanan it is held: “The ‘care, control and custody clause’ frequently found in liability insurance policies is of a generally ambiguous character and must be applied to the facts of each individual case with common sense and practicality, and when the facts do not clearly show that an insured is exercising physical custody, dominion, authority or control over the property at the time of its injury, in the sense of using such property for his own purposes, the issue of whether the property was in the care, custody and control of the insured becomes one for the jury’s determination.” (Syl. ¶ 5.) Our attention is also called to Arnold v. Western Casualty & Surety Co., supra. In paragraph 4 of the syllabus of that case this court says: “When the ‘care, control or custody clause’ used in a general comprehensive liability policy to exclude portions of the coverage is of a generally ambiguous character such clause should be applied with common sense and practicality on the basis of the evidentiary facts. When it does not conclusively appear that the insured was exercising physical custody, dominion, authority or control over the property at the time of its injury, the question of care, control and custody should be resolved by the trier of fact.” (209 Kan. 80, Syl. ¶ 4.) In its brief appellant concludes that “this is a fact case” and that the “judgment entered by the trial court is not sustained . . . by the evidence.” We agree with the law cited by appellant and agree that this is a fact case. We must now examine the evidence before the trial court to determine if there is a basis in the evidence to support the judgment in favor of defendant. What are the facts in evidence concerning the care, custody or control of the semi-trader at the time of the fire? The evidence on this point is taken from the transcript of the testimony in Campbell Sixty-Six Express, Inc. v. Adventure Line Mfg. Co. Inc., supra, as stipulated by the parties. Adventure Line was engaged in manufacturing antipersonnel bombs under contract with the federal government to be delivered to the Kansas Ordnance Plant at Parsons, Kansas. The semi-trailer was owned by Campbell Sixty-Six Express, Inc., a common carrier, who had a contract with the federal government to transfer the manufactured bombs from the Adventure Line plant to the Kansas Ordnance Plant. The bombs were sold to the federal government F. O. R. the Adventure Line plant. When a semi-trailer load was ready for shipment the proper government officials were notified. They in turn advised Adventure Line as to which one of several common carriers was to pick up the shipment. Adventure Line then notified that common carrier. It was the practice for the common carrier to send a tractor-trailer, and the driver would “dolly down” the trailer at the loading dock on the Adventure Line premises. The doors of the trailer were left open. The trailer was then loaded by the employees of Adventure Line. This took from two hours to twenty-four hours depending on the availability of employees to load the trailer. Generally the tractor which delivered the trailer was unhooked from the trailer and the driver then had his traotor free for other jobs. The trailer involved in the present case was a forty foot aluminum, closed-van trailer. It was seven and a half feet wide, had eight wheels and weighed around 12,000 pounds empty. When a trailer is “dollied down” the landing gear is lowered to the ground to support the trader while the tractor is removed. The trailer in this case was dollied down at the loading dock and Adventure Line had no tractor of its own with which to move the trailer after it was dollied down at the dock. The employees of Adventure Line had not begun to load the trader when the fire broke out in the plant. When the fire broke out one of the employees called the Campbell Sixty-Six answering service and tried to get a tractor to move the trader. The answering service could not locate the driver. The employee then tried to get another carrier to furnish a tractor to move the trailer but failed to do so. The truck driver who' left the trailer at the loading dock testified that he followed the standard procedure in this particular case, that Campbell Sixty-Six had no contract with Adventure Line, that its contract was with the federal government and that the trailer was left on the premises with the consent and for the mutual benefit of the carrier and the manufacturer. The manager of Adventure Line testified that his contract was with the government, delivery of the bombs was F. O. B. the plant, and the contract said nothing about hauling. Normally, the carrier did leave a trailer and then come at its convenience to haul the load because the carrier did not want to tie up a tractor. This practice served die convenience of the carrier. The manager further testified the only reason he invited the carrier on the plant premises was so the carrier could perform its hauling contract with the government. The truck was loaded by plant employees and, although it was not necessary for the company to load the trailers to get paid, if the government provided a truck Adventure Line would load it. In the present case it is clear that the trailer was left at the loading dock on the plant premises. At the time the fire occurred neidier the owner of the trailer nor any of its employees were present on the plant premises. The trailer had been left unattended under a customary arrangement to permit the employees of Adventure Line to load the trailer with the manufactured product at their convenience. The factual situation with regard to this unattended trailer differs substantially from the facts in Buchanan v. Employers Mutual Liability Ins. Co., supra; Arnold v. Western Casualty & Surety Co., supra; and Herrman v. Folkerts, 202 Kan. 116, 446 P. 2d 834. In Buchanan the property concerned was a dump truck which was being let down the face of a dam by means of a winch mounted on a caterpillar tractor owned and operated by the insured. The dump truck was owned and operated by an independent contractor. The driver of the truck remained at the wheel of the truck throughout the operation. The question of who was exercising “care, custody and control” of the dump truck had to be decided upon the basis of physical custody, dominion, authority or control over the dump truck in the sense of using such property for his own purposes. In Arnold the property consisted of hand tools owned and used by the individual employees while engaged in their ordinary duties. The fire broke out while the plant was in operation. There was no evidence in the record as to the actual physical location, use, custody or control of the employees’ tools when the fire broke out except for evidence of the customary practices. This court held that the question of who had possession and control of the hand tools was a question of fact. Since the exclusionary clause was ambiguous the insurance company had the burden of proving that the loss fell within the exclusionary clause and having failed to do so to the satisfaction of the trial court, the trier of fact, the judgment in favor of the employees was affirmed by this court. In Herman the property concerned was a tractor which the insured took without permission of the owner. At the time the tractor was damaged the insured was actually operating it for his own personal use. In each of these three cases the factual situations indicated that someone was exercising immediate control over the property at the time the property was damaged. In Buchanan both the insured and the owner of the property were present and both were connected in some way with the possessory handling of the property as distinguished from proprietary control. In Arnold the plant of the insured was operating and at least some of the tools owned by the employees were being used by the employees when the fire occurred and both the insured, by its various employees, and the owners of the tools themselves were present on the scene when the fire occurred. In Herman the insured without permission was operating the tractor for his own use and there was no question that the property damaged was in the physical control of the insured. Under the facts of the present case the trailer was left unattended on the premises of the insured. The owner was not present and the employees of the insured had not begun to load the trailer when the fire started. Therefore it appears that neither the insured nor the owner had custody or control of the trailer in the sense of possessory handling, physical custody, dominion, authority or control over the trailer as distinguished from the proprietary right of control. Howevex-, this exclusionary clause in the policy covers property in the care of the insured as well as property in custody and control. The provision reads in the alternative with the conjunction “or.” So under the factual situation presented in tire present case we are concerned with whether the trailer was left in the care of the insured, not whether it was in the custody or control of the insured. In Campbell Sixty-Six Express, Inc. v. Adventure Line Mfg. Co. Inc., supra, it was determined that the owner of the trailer was a business invitee of the insured, that the trailer was left on the premises of the insured at the invitation of the insured and as a result thereof the insured owed a duty to exercise reasonable and ordinary care with respect to the trailer. In the present case the trailer was delivered by the owner to the premises of the insured. It was under-stood by the owner and the insured that the trailer was to be placed at the loading dock for a specific purpose, loading with products manufactured by the insured. Under the customary practice followed by the parties it was reasonably implied that the insured would faithfully complete the loading and when that special purpose was accomplished the owner would be notified and the trailer would be kept on the premises until the owner reclaimed it. In Global Tank Trailer Sales v. Textilana-Nease, Inc., 209 Kan. 314, 496 P. 2d 1292, it is said: “A bailment for mutual benefit arises whenever it appears that both of the parties receive a benefit from the transaction. It is not essential, to constitute a bailment for mutual benefit, that the bailee actually receive compensation in money or tangible property, so long as the bailment is an incident of the business in which the bailee makes a profit, or was accepted because of benefits expected to accrue.” (Syl. ¶ 2.) In 8 Am. Jur. 2d, Bailments, § 2, p. 906, the following definition of a bailment is given: “A bailment,’ in its ordinary legal signification, imports the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it.” The transaction in the present case was closely akin to a bailment of the trailer since the trailer was left on the plant premises for the mutual benefit of the parties. The carrier was adjudged to be a business invitee in Campbell Sixty-Express, Inc. v. Adventure Line Mfg. Co. Inc., supra. The property of the business invitee was left unattended with the consent of the insured manufacturer. While on the plant premises the insured had charge of the trailer for the purpose of loading it with manufactured products. During this time and for this purpose the trailer was in the care of the insured under conditions which would imply responsibility for its safe keeping. Under the facts and circumstances we hold the trailer was “in the care of the insured” within the meaning of the exclusionary clause of the general comprehensive liability insurance policy issued to the insured when the trailer was left unattended on the insured’s premises by the common carrier, a business invitee, for the mutual benefit of the parties. The judgment is affirmed. Prager, J., not participating.	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The opinion of the court was delivered by Peagee, J.: This case involves a dispute as to the priority of two liens asserted against an oil and gas leasehold interest. The essential facts in the case are not in dispute and are as follows: The plaintiff-appellee, Nathalie Ingram, is the former wife of the defendant, Billy L. Ingram. On October 8, 1968, plaintiff, Nathalie Ingrain was granted a divorce. As a part of the decree Billy L. Ingram was ordered to pay alimony in the amount of $500 per month and child support in the amount of $100 per month. The property settlement agreement and the decree approving the same awarded to Billy L. Ingram an oil and gas lease free and clear of the claims of Nathalie Ingram. This lease covered a tract of land in Russell county and will be referred to in this, opinion as the Solbach lease. On August 18, 1969, Billy L. Ingram, obtained a loan and executed a promissory note in the amount of $12,500 to the Home State Bank of Russell, the intervenor-appellant. In order to secure the loan Billy L. Ingram assigned to the Home State Bank his undivided Iths working interest in the Solbach lease. At that time Billy L. Ingram and the Home State Bank orally agreed that the Solbach lease was assigned to secure and mortgage all indebtedness incurred or to be incurred by Billy L. Ingram by future advances made to him by the bank and that the bank had no obligation to reassign the Solbach lease back to Mr. Ingram until all of his indebtedness to the bank was paid in full. This assignment was filed as an instrument affecting real estate for record in the office of the register of deeds of Russell county on August 29, 1969. The assignment of the oil and gas lease, although absolute in form, was stamped by the register of deeds to reflect the amount of the indebtedness which the assignment secured, $12,500. A mortgage registration fee calculated on the basis of a $12,500 loan was paid. On October 11, 1969, the Home State Bank loaned Billy L. Ingram additional moneys and the $12,500 note was renewed and incorporated in a new note in the amount of $36,400. It was orally agreed that the $36,400 indebtedness was to be secured by the Solbach lease and by other oil and gas leases assigned to the bank. Nathalie Ingram had no actual knowledge of these financial transactions between Mr. Ingram and the bank. The controversy arose in this case when Billy L. Ingram defaulted on his alimony and child support payments. On January 23, 1973, Nathalie Ingram levied execution on the Solbach lease in order to collect delinquent alimony and child support payments in the amount of $6,529.50 with interest. It is undisputed that all of the delinquencies in alimony and child support payments arose subsequent to the execution of the second promissory note of Billy L. Ingram on October 11, 1969. The attempt of Nathalie Ingram to levy execution and sell the interest of Billy L. Ingram in the Solbach lease prompted the Home State Bank to take action to protect its security interest in the Solbach lease. On March 14, 1973, the Home State Bank filed motions in the divorce case to intervene and to enjoin the sale of the Solbach lease. The bank sought to have its mortgage lien declared superior and prior to any lien the plaintiff, Nathalie Ingram, might have on the Solbach lease as a judgment creditor. It was Nathalie Ingram’s position that assignments of oil and gas leasehold interests for security purposes are within the compass of the Uniform Commercial Code (K. S. A. 84-1-101 through 84-10-102); that the assignment of the Solbach lease made no express provision to secure future advances after the original loan of August 18, 1969, in the amount of $12,500 was made; hence the oral agreement that the lease assignment was to secure future advances was null and void. It was the position of the Home State Bank, as intervenor, that the assignment of the Solbach oil and gas lease for security purposes is excluded from the application of the Uniform Commercial Code by the provisions of K. S. A. 84-9-104 (j); and that its assignment of the Solbach lease constitutes a first and prior mortgage or security interest entitling the bank to all proceeds derived from the sale of the Solbach lease necessary to pay the entire indebtedness of Billy L. Ingram to the bank. The district court held that the Uniform Commercial Code applies to the assignment of an oil and gas leasehold interest given as security for future advances. The trial court reasoned that although K. S. A. 84-9-104 (j) excludes from the application of the code instruments creating or transferring an interest in or lien on real estate, such provision does not exclude oil and gas leasehold interests. The trial court further held that because of the provisions of the Uniform Commercial Code, the assignment of the Solbach lease secured only the original indebtedness of $12,500 and therefore the Home State Bank has priority only as to the unpaid balance of that indebtedness in the amount of $5,585.12. The trial court then found the bank had a prior lien on the Solbach lease only to the extent of $5,585.12, holding that the judgment execution lien of Nathalie Ingram was superior as to any amount in excess of that figure. The Home State Bank has appealed to this court from that judgment. The primary issue to be determined in this case is whether or not tire assignment of an oil and gas lease for security purposes is subject to the provisions of the Uniform Commercial Code. If the provisions of the code are applicable then it would follow that under the provisions of 84-9-204 (5) the bank’s security interest for future advances was not perfected since the assignment of the Solbach lease did not specifically provide for securing future advances as well as present advances. Furthermore under 84-9-301 a “lien creditor” is fully protected from unperfected liens. On the other hand if the provisions of the Uniform Commercial Code are not applicable to the assignment of an oil and gas leasehold interest for security purposes then traditional principles of law pertaining to real estate mortgages should be applied. The issue presented is one of first impression in this state since the Uniform Commercial Code became effective in Kansas on January 1, 1966. In order to determine the issue presented it is necessary for us to construe K. S.A. 84-9-104 (j) which provides as follows: “84-9-104. Transactions excluded from article. This article does not apply. "(j) except to the extent that provision is made for fixtures in section 84-9-313, to the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder; . . Does the assignment of an oil and gas leasehold interest for security purposes fall within this exclusion? Is an oil and gas lease an interest in or lien on real estate within the meaning of the section? The determination of these issues is not without difficulty. We have stated in many cases that an oil and gas lease does not create any present vested estate in the nature of title to the land which it covers or to the oil and gas in place. It merely conveys a license to enter upon the land and explore for such minerals and if they are discovered to produce and sever them. We have further declared that an oil and gas leasehold interest is personal property— an incorporeal hereditament — a profit a prendre. (Connell v. Kanwa Oil Inc., 161 Kan. 649, 170 P. 2d 631, citing many Kansas cases to that effect.) The Kansas courts, like those of other jurisdictions, have found some difficulty in fitting the interest of an oil and gas lessee into the traditonal common-law classifications relating to ordinary surface interests in land. It seems to be agreed that an oil and gas leasehold interest is a property right, but there still remains wide disagreement among the various jurisdictions of this country as to whether it is real property or personal property. A number of our opinions state categorically in general language that an oil and gas lease is personal property. (Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463; Connell v. Kanwa Oil Inc., supra; Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899.) In Western Natural Gas Co. v. McDonald, 202 Kan. 98, 446 P. 2d 781, we qualify the rule by stating that the rights created by oil and gas leases covering land in Kansas constitute intangible personal property except when that classification is changed for a specific purpose by statute. K. S. A. 79-1501 provides that oil and gas leases on lands in this state shall be considered as tangible personal property for the purposes of the inheritance tax act. Oil and gas leases are considered to be personal property for ad valorem tax purposes. (K. S. A. 79-329.) In Beren v. Marshall Oil & Gas Corp., 122 Kan. 134, 251 Pac. 192, we declared that R. S. 60-3126 making a judgment a lien on the real esate of the debtor within the county does not apply to an ordinary oil and gas lease since an oil and gas lease is an incorporeal hereditament and not real estate within the meaning of that statute. In 1907 we held in Oil Co. v. McEvoy., 75 Kan. 515, 89 Pac. 1048, that one who performs labor in drilling an oil and gas well could not obtain a mechanics’ lien for such labor which will attach to the leasehold interest or to personal property belonging to the lessee and left upon die land. The basis of the rule was that an oil and gas leasehold interest is not an interest in land witíiin the contemplation of the mechanics’ lien statute. This rule was changed by the legislature by the adoption of K. S. A. 55-209 in 1923. It provided for a mechanics’ lien for labor or materials on oil or gas leasehold interests. The legislature at the same time adopted K. S. A. 55-210 which states that all liens and mortgages on leaseholds for oil and gas purposes shall be enforced and foreclosed in the same manner as may be provided by law for enforcing hens and mortgages against real estate. The effect of these statutes was to declare that an oil and gas lease is to be treated as real property for purposes of enforcing mechanics’ liens and other liens. In other fields of the law our statutes and court decisions have considered oil and gas leasehold interests as realty for certain purposes. We have held that a contract to execute or assign an oil and gas lease is within the contemplation of the statute of frauds and therefore to be valid, such a contract must be in writing. (Robinson v. Smalley, 102 Kan. 842, 171 Pac. 1155; White v. Green, 103 Kan. 405, 173 Pac. 974; Riffel v. Dieter, 159 Kan. 628, 157 P.2d 831; Gates v. Syndicate Oil Corp., 132 Kan. 272, 295 Pac. 649.) We have also departed from some of our general statements that an oil and gas lease is personal property and not an interest in land in cases where an outstanding oil and gas lease has had the effect of clouding the title to real estate. In Haggart v. Wheeler et al., 116 Kan. 702, 229 Pac. 357, we declared that the fee owner of land could quiet his title against the owner of an oil and gas leasehold interest. It is obvious from the opinion that we considered an oil and gas lease to be an “incumbrance” upon the land which we defined to be “any right to, or interest in, land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.” More recently in Woelk v. Woelk, 174 Kan. 130, 254 P. 2d 297, we held unequivocally that an oñ and gas lease is an incumbrance upon the real estate described therein and that the owner of a life estate had no right to execute an oil and gas lease on the real estate during her lifetime. It is difficult to see how an off and gas lease can be an incumbrance on real estate as we have defined it without being a right or interest in the real estate. There are other areas where the legislature has specifically included off and gas leasehold interests within the category of real property. An oil or gas lease is real property for the purpose of setting the venue of actions concerning real property under the provisions of K. S. A. 1973 Supp. 60-601. An off or gas lease is considered real property in the statutory ejectment action provided by K. S. A. 60-1001. Off and gas leases are treated as real property for the purpose of execution and sale to satisfy a judgment under the provisions of K. S. A. 60-2401. It is obvious from this analysis of the Kansas statutes and decisions that in this state an oil and gas lease is a hybrid property interest. For some purposes an off and gas leasehold interest is considered to be personal property and for other purposes it is treated as real property. Our problem in this case is to determine how to treat an assignment or mortgage of an off and gas leasehold interest under the recording statutes which govern security transactions. We have concluded that the legislature has determined that oil and gas leasehold interests are to be treated as real property under the statutes pertaining to the recording of instruments conveying or affecting real estate. We have already mentioned K. S. A. 55-210 pertaining to the enforcement of all kinds of liens and mortgages on leaseholds for oil and gas purposes. They are to be enforced and foreclosed in the same manner as may be provided by law for enforcing liens and mortgages against real estate except that after sale of the property there shall be no redemption. Furthermore in 1953 the legislature by amendment of G. S. 1949, 67-221 specifically included oil and gas leases under the statutes which govern the recording of instruments affecting real estate. K. S. A. 58-2221 provides as follows: “58-2221. Recordation of instruments conveying or affecting real estate; duties of register of deeds. Every instrument in writing that conveys real estate, any estate or interest created by an oil and gas lease, or whereby any real estate may be affected, proved or acknowledged, and certified in the manner herein-before prescribed, may be recorded in the office of register of deeds of the county in which such real estate is situated: . . .” (Emphasis supplied.) K. S. A. 58-2222 provides in substance that an oil and gas lease when recorded shall from the time of filing the same with the register of deeds for record impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice. In 1955 in National Bank of Tulsa v. Warren, 177 Kan. 281, 279 P. 2d 262, this court held that an assignment of an oil and gas leasehold interest for security purposes should be recorded in compliance with the real property recording acts and that it fell within the category of a mortgage on real estate so as to be subject to the mortgage registration fee under the provisions of G. S. 1949, 79-3101, et seq. In arriving at this conclusion the court relied upon the provisions of G. S. 1949, 67-221 which are discussed above. The court also relied in part upon Riverview State Bank v. Ernest, 198 F. 2d 876, 34 A. L. R. 2d 892, where the United States Court of Appeals for the 10th Circuit, held that a mortgage covering an oil and gas leasehold in Kansas which was recorded in the real estate mortgage records of the county where the property was situated, but not filed and entered upon the chattel mortgage records, fixed and fastened a lien upon the property effective from the date of recording and filing of the mortgage as against a subsequently appointed trustee in bankruptcy. Unfortunately this clear statement of the law was muddied in 1962 by Shields v. Fink, Executrix, 190 Kan. 17, 372 P. 2d 252. In that case Shields sought to foreclose an alleged mortgage by a decedent of a ⅟16th interest in an oil and gas lease. The defense was that the alleged mortgage had not been filed as required by the chattel mortgage statute. In fact the assignment of the oil and gas lease involved was not recorded at all, either as a real estate mortgage or as a chattel mortgage. This court held in sustaining the dismissal of the case that at best the unfiled mortgage created only an equitable lien and that only “specific liens” could be enforced outside of the probate proceeding with respect to the deceased mortgagor. The court stressed the chattel nature of an oil and gas lease by stating that an oil and gas lease conveys no interest in land but is merely a license to explore and is personal property, au incorporeal hereditament — a profit a prendre. The court then made the broad statement that: “Any mortgage on the decedent’s interest in the oil and gas lease in question, which is personal property, is subject to the Kansas chattel mortgage statute, G. S. 1949, 58-301, . . ”(p. 26.) The opinion in Shields did not cite National Bank of Tulsa v. Warren, supra, where we held to the contrary. Furthermore the court did not mention or cite 55-210 or 58-2221. The statement made in Shields was not necessary for a decision in the case and the language quoted above in our judgment was clearly in error. We reaffirm out position in National Bank of Tulsa v. Warren, supra, and specifically overrule any statements to the contrary in Shields. We therefore hold that a mortgage or assignment of an oil and gas leasehold interest for security purposes which is recorded in the real estate mortgage records of the county wherein the property is situated fixes a lien upon the oil and gas leasehold effective from the filing of the same and that filing imparts notice to all persons of the contents thereof under the provisions of K. S. A. 58-2222. The result which we have reached is also consistent with out holding in Troxell v. Cleveland Oil Co., 145 Kan. 658, 66 P. 2d 545, where we held that under 55-210 it was the intention of the legislature to place liens on oil and gas leaseholds in the same status as liens on real estate generally, save as to rights of redemption as provided in the last sentence of that statute. We also believe that the statutes and the cases just cited should be utilized in interpreting K. S. A. 84-9-104 (j) which declares that the Uniform Commercial Code does not apply to the creation or transfer of an interest or lien on real estate, including a lease or rents thereunder. We hold that a mortgage or assignment of an oil and gas leasehold for security purposes is to be treated as a real estate mortgage and that such instruments are not controlled by the provisions of the Uniform Commercial Code. In arriving at this conclusion we have also considered the other provisions of the Uniform Commercial Code where oil and gas is specifically mentioned. We note for example K. S. A. 84-9-204 which provides in substance that the debtor has no rights in oil, gas or minerals until they are extracted. This provision seems clearly intended to keep under the real estate recording laws any type of security interest relating to unextracted oil and gas. The oil and gas situation presents an unusual problem. Oil and gas are considered to be a part of the real estate until they are extracted; then they immediately change from realty to personalty. It is upon extraction that the law pertaining to security interests in personal property comes into play. We have also not overlooked the provisions of K. S. A. 84-9-203 which provides in substance that a security interest is not enforceable against the debtor or third party unless the debtor has signed a security agreement which contains not only a description of the oil and gas collateral but also a description of the land concerned. This provision must be read along with 84-9-204 which has just been discussed above. The section is not really pertinent on the issue of whether or not a mortgage or assignment of an oil and gas leasehold is excluded from the operation of the Uniform Commercial Code by virtue of the provisions of 84-9-104 (j). From what we have stated above and on the basis thereof we hold that the assignment of the oil and gas lease for security purposes by Billy L. Ingram to the Home State Bank in this case was not subject to the provisions of the Uniform Commercial Code and that it must be treated on the same basis as a real estate mortgage in determining the priority of liens in this case. We now turn to the question of whether or not the assignment of the Solbach lease for security purposes executed on August 18, 1969, secured future advances made to Billy L. Ingram by the Home State Bank. In Potwin State Bank v. Ward, 183 Kan. 475, 327 P. 2d 1091, we held that a mortgage given to secure future advances is valid and will be judicially enforced. We further held that advances made from time to time under such a mortgage, at least if made pursuant to an agreement to make them, have priority over liens which attach after the recording of the mortgage but before the making of the advances. We further declared that advances made under a recorded mortgage given to secure future advances will not be denied priority in lien merely because the intervening encumbrancer could not have determined from tire mortgage, without extraneous inquiry, the true amount of the indebtedness or advances secured thereby. Under the undisputed facts in this case the sole advancement made by the bank to Billy L. Ingram was made on October 11, 1969, approximately three years prior to plaintiff’s judgment lien of January 23, 1973, which lien did not attach either before the recording of the Solbach lease assignment or the advancement was made by the bank. Here tire assignment of the Solbach lease was absolute on its face, although given only for security purposes. Such assignment must be treated as an equitable mortgage and enforced as such in accordance with the actual agreement of the parties. (Berger v. Bierschbach, 201 Kan. 740, 443 P. 2d 186; Marshall v. Bailey, 183 Kan. 310, 327 P. 2d 1034; Hess v. Hess, 164 Kan. 139, 187 P. 2d 383.) Since the assignment of the Solbach lease was recorded it imported constructive notice to all persons who might be affected by it. K. S. A. 58-2222.) It should also be stated that under traditional real estate mortgage law a judgment creditor is not considered to be a purchaser or subsequent mortgagee for value and cannot obtain a greater right in property taken on execution than that owned by the judgment debtor. An unrecorded mortgage is valid as between the parties thereto. (K. S. A. 58-2223.) Since an attaching creditor of the mortgagor stands in his shoes, an unrecorded mortgage may be enforced against the attaching creditor. (Culp v. Kiene, 101 Kan. 511, 168 Pac. 1097; Julian v. Oil Co., 83 Kan. 440, 111 Pac. 445; N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 152, 12 Pac. 705; Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. 202, 336 P. 2d 463.) The same rule has been applied to an unrecorded assignment of an oil and gas lease given as security for a loan. (Bennett v. Christy, 137 Kan. 376, 20 P. 2d 813.) From these decisions it is clear to us that the assignment of the Solbach leasehold interest here to the bank for security purposes secured future advances and may be enforced against plaintiff, an attaching creditor. Therefore the claims of the bank for the indebtedness owed to it by Billy L. Ingram are prior and superior to the claims of Nathalie Ingram as a judgment creditor. There has been an issue raised on.this appeal by the plaintiffappellee that the Home State Bank is barred from claiming that its mortgage secured a larger amount that the original $12,500 on which the mortgage registration fee was paid. The plaintiff Nathalie Ingram takes the position that because the Home State Bank did not prove the mortgage registration fee had been paid on the advance made on October 11, 1969, the assignment of the Solbach lease was not admissible in evidence and the court lacked jurisdiction to enforce it. We have declared that the registration fee required to be paid on mortgages of real property before they can be recorded is essentially a tax. Failure to pay the registration fee, or tax does not vitiate an instrument given as security, even though its enforcement as a mortgage may not be entered by a court until the fee has been paid. (Berger v. Bierschbach, supra.) In this case the assignment of the Solbach lease was admitted into evidence by stipulation of the parties and no issue in regard to the payment of the registration tax was raised below in the trial court. The Home State Bank argues here that since the point was not raised below it had no opportunity to show in fact that the entire registration fee had been paid on the assignment of other oil and gas leases as security when additional funds were loaned by the bank on October 11, 1969. Under the circumstances we will not consider the point on this appeal, since it was not heretofore presented to the trial court. (Thompson v. Meyers, 211 Kan. 26, 505 P. 2d 680.) For the reasons set forth above the judgment of the trial court is reversed and remanded with instructions to enter judgment in favor of the intervenor, the Home State Bank, determining that the lien of the Home State Bank under the assignment of the Solbach lease is prior and superior to the judgment lien of the plaintiffappellee, Nathalie Ingram.	[ 80, 108, 32, 94, 10, 64, 40, 25, 123, -127, -91, 83, -85, -24, 5, 113, -122, 57, 101, 105, -73, -73, 35, 113, -64, -13, -7, -51, -78, 94, -28, -41, 76, 36, 10, -43, -30, -118, -59, -36, 14, 5, -103, 100, 88, -126, 52, 41, 18, 77, 113, 13, 117, 41, 61, 74, 73, 44, 89, 61, 80, -8, 10, 21, 95, 3, -109, 36, -104, 5, -24, 10, -104, 48, 8, -23, 122, -74, -58, 116, 13, 25, 13, -74, 35, 17, 45, -17, -20, -104, 15, -1, -99, -90, -46, 88, -93, 0, -65, 20, 124, 86, 6, 118, 106, 5, 29, 116, 15, -54, -44, -79, 15, -8, -110, 3, -5, 67, 32, 117, -49, -78, 124, 71, 59, -101, 2, -110 ]
The opinion of the court was delivered by Harman, C.: Charles L. Nading was convicted by a jury of the offense of attempted aggravated burglary. His motion for new trial was denied, he was sentenced and now appeals. Prosecution testimony revealed the following. Mrs. Mary Hansen was asleep in her residence at 423 North State street in Iola during the early morning hours of April 8, 1972. Present in her house with her were her children and a girl. At about 4:00 a. m. Mrs. Hansen awoke, sensing something was wrong. She got up and checked on the girl and her children. When she returned to her bedroom two men were standing close together right outside her bedroom window. There was a street light in the area located on the west side of the Hansen house. Mrs. Hansen went to the kitchen, got a drink of water and returned to her bedroom where she could see the men right outside her bedroom window again. She was frightened but she waited a short while to ascertain whether the men were just passing through her yard. She then went to the kitchen, called the police and returned to her bedroom where she could see the two men “rounding the front porch again as though they had circled the house.” About five minutes elapsed from the time Mrs. Hansen first saw the two men until police arrived. Two Iola city patrolmen responded to the police radio dispatcher’s call, arriving near the Hansen house in an unlighted police car. These officers noticed two men near a window of the Hansen home. One officer, who had alighted and gone on foot around the house from the other direction, testified both men had their hands around the window frame and it looked as though they were attempting to remove the storm window from the house. This officer saw the two men go to the rear entrance to the house where one of them opened the screen door and the other tried to open the inside door by turning the knob. At this point the officer remaining in the police vehicle turned on the patrol oar lights and the two men started to run. They ran close to Mrs. Hansen’s automobile which was parked in a driveway and as they did so one officer observed them throwing some objects under the Hansen car. The men were immediately apprehended by the two officers. One was appellant Charles L. Nading, the other was Clinton J. Myers. The two stated they had hitchhiked to Iola and that they were just “prowling” around. When arrested appellant was wearing a camouflaged colored hat, brown coveralls, cowboy boots and jersey gloves. It was a warm night— temperature was about sixty-five to sixty-seven degrees. The arresting officer was wearing a short sleeved shirt and didn’t need gloves to keep his hands warm. The officers took the pair immediately to the police station and booked them for the offense of prowling. The officers then returned to the Hansen home and looked under the Hansen vehicle. There they found a five pound sledgehammer, two long drift punches: and a .32 caliber automatic pistol containing a clip loaded with cartridges. Laboratory analysis of these items revealed no fingerprints. The punches were of a type which could be used to knock the dial off a safe. When Mrs. Hansen had parked her vehicle about ten o’clock the night before there was nothing in the driveway under it. Appellant testified in his own behalf: He had been drinking in taverns in Parsons the afternoon and evening of April 7,1972; sometime after midnight he, his codefendant Myers and a Henry Burik left Parsons in Burik’s automobile, intending to drive to Leavenworth where Myers knew some people; prior to leaving Parsons they had purchased two pints of bootleg whiskey; while in Burik’s car Myers and Burik had two arguments about the manner in which Burik drove the car; the first occurred on a county road south of Iola, the second about a mile north of the Iola truck stop- on the main highway; there appellant and Myers got out of the Burik vehicle arid walked back to Iola; they were intending to walk back to Altamont; they stopped in Iola to rest on the front porch of the Hansen house; they then walked around the house to the rear to try to find a hydrant because they were thirsty; there police told them to stop and arrested them; appellant did not run because he was too drunk to run; he did not have the sledgehammer, punches or pistol in his possession and he did not see Myers have them; he did not look into the window of the Hansen house and had no intention of taking anything from it; he was first notified he was charged with attempted burglary'when a warrant was given to him late Saturday evening, April 8, 1972, while he was in jail. Henry Burik testified in appellant’s behalf, generally corroborating appellant’s testimony as to events occurring in Parsons and the journey to the point one or two miles north of Iola where appellant and Myers were left afoot; at this time both were drunk; after proceeding to the first town north Burik returned to Iola where he drove around but did not see his erstwhile passengers. Appellant was charged jointly with Myers but was granted a severance and tried separately. Appellant’s first point on appeal is that the trial court erred in denying his motion to dismiss because, subsequent to his arrest, he was not taken before the nearest available magistrate without unnecessary delay, nor was a complaint filed against him forthwith, as provided by K. S. A. 1973 Supp. 22-2901. First of all, appellant asserts he was arrested during the early morning hours of Friday, April 7, 1972. Counsel for appellee does not take issue with this assertion arid in fact concedes it; nonetheless, the record conclusively reveals the offense was committed and appellant was arrested during the early morning hours of Saturday, April 8th. The confusion appeal’s to have developed in this fashion —at a hearing on a motion to dismiss, held June 9, 1972, more than three months prior to trial, counsel for appellant stated that appellant was arrested on April 7, 1972, and he recited the dates of further events; the then county attorney replied: “I believe that is correct”; a transcript of this hearing was embodied in a supplemental record on appeal and present counsel appear to have accepted the April 7th date mentioned therein. The record on appeal reveals that the complaint, prepared April 8, 1972, and the information each charged the offense as having occurred on April 8,1972; every witness whose testimony appears in the record on appeal (Mrs. Hansen, the two arresting patrolmen, appellant and Henry Burile) clearly and specifically fixed the offense and arrest as having occurred during the early morning hours of Saturday, April 8th. Further events, concerning which no confusion appears, are: On Saturday afternoon, April 8th, a complaint was filed and after the judge of the county court had received evidence from police officers a warrant charging appellant with attempted aggravated burglary was issued; the warrant recited the sum of $2,500 as the amount of appearance bond required; the warrant was exhibited to appellant the evening of Saturday, April 8th, while he was in jail; appellant was taken before the judge of die county court at about 1:30 p. m. on Monday, April 10,1972. K. S. A. 1973 Supp. 22-2901 provides in part: “Appearance before the magistrate. (1) When an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested shall be taken without unnecessary delay before a magistrate of the court from which the warrant was issued. If the arrest has been made on probable cause, without a warrant, he shall be taken without unnecessary delay before the nearest available magistrate and a complaint shall be filed forthwith.” It has been said the purpose of the foregoing is to insure that any person arrested is held on a proper charge and to secure to such person the earliest possible opportunity for bail (12 Vernons K. S. A. Code of Criminal Procedure, § 22-2901, p. 502.) The phrase “without unnecessary delay” is taken from Rule 5, Federal Rules of Criminal Procedure, and is intended to provide a measure of flexibility, dependent upon the circumstances of the arrest, but at the same time to require a high degree of promptness (“Notes On The Code of Criminal Procedure,” Richard H. Seaton and Paul E. Wilson, 39 JBAK 97, 1964). Federal cases indicate one of the purposes of the rule is to prevent prearraignment detention of an arrested person for the purpose of securing a confession (United States v. Chadwick, 415 F. 2d 167). In determining what constitutes unnecessary delay under Rule 5, federal courts make a case by case determination. In Walton v. United States, 334 F. 2d 343, this was stated: “There is no hard and fast rule as to what constitutes unnecessary delay. Each case must be determined on its own facts.” (p. 346.) Our prior criminal code contained no specific provision that a person arrested without a warrant should be taken before a magistrate without unnecessary delay. However, this court in construing statutes relating to appearances before magistrates (K. S. A. 62-610, 62-614) held that a person arrested for a crime, either with or without a warrant, was to be taken before a magistrate with reasonable promptness and without unnecessary delay (Cooper v. State, 169 Kan. 421, 411 P. 2d 652). In State v. Dobney, 199 Kan. 499, 429 P. 2d 928, the following appears: “Defendant’s next contention that he was prejudiced because of the delay in his being taken before an examining magistrate is likewise without merit. The record fails to disclose the date of arrest, but we are told that it was on Saturday, March 26, 1966. Charges were filed on Tuesday, March 29, and on the same day the defendant was taken before the magistrate. The reason for the delay is not apparent, except that the arrest occurred on the weekend. In what way defendant was prejudiced by the delay is not shown. Even if the time interval be considered excessive, unless the delay in some way deprived the defendant of a fair trial, it did not in and of itself constitute a denial of due process.” (p. 451.) Certainly the provision that an arrested person be taken without unnecessary delay before a magistrate does not require around-the-clock services and availability of a magistrate. Many federal cases have held it was not unnecessary delay to wait until regular business hours of the magistrate before producing the prisoner (see 1 Wright, Federal Practice and Procedure, § 74, p. 98). Here the complaint was filed, examination of police officers made and warrant issued at some undesignated hour of the afternoon of the same day on which the offense was committed, Saturday, April 8, 1972. The warrant was served on appellant “late Saturday evening.” The amount of his bond was endorsed on the warrant but he was not taken before the magistrate until 1:30 o’clock on the afternoon of Monday, April 10th. There is no indication that any incriminating statements or admissions were obtained meanwhile from appellant or that anything improper occurred over the weekend. Appellant makes no assertion or showing that he was prejudiced by the delay, nor does it appear the prejudice resulted in any way. There was sufficient compliance with 22-2901 and the trial court properly denied appellant’s motion to dismiss. Appellant contends the trial court erred in receiving, over his objection, evidence of two previous convictions of crime. These convictions were evidenced by two journal entries of judgment. Appellant’s identity as the subject of these convictions was conceded. One journal entry reveals he was convicted October 20, 1964, of the offenses of burglary in the second degree and larceny in connection therewith, in the district court of Cowley county, Kansas; the second shows he was convicted May 12, 1965, of the offense of burglary in the second degree in the district court of Butler county, Kansas. The contention is that the convictions were too remote in time and were not relevant evidence. Convictions occurring eight and seven years previous to the offense upon trial are not too remote in time, where otherwise relevant (State v. Finley, 208 Kan. 49, 490 P. 2d 630). K. S. A. 60-455 provides: “Other crimes or civil wrongs. Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” The two convictions were offered by the prosecution for the purpose of showing intent, plan, and absence of mistake or accident. They were received for those limited purposes and the jury was instructed accordingly. No complaint against the instructions has been lodged. The crucial issue in the case is the intent of the appellant in his actions at the time he was at the Hansen house. Appellant asserted he was there for innocent and honest purposes — to rest and quench his thirst. The state contended otherwise. When previous convictions are offered in evidence the trial court is always confronted with the delicate task, first, of determining relevancy and, where that issue is resolved favorably to the prosecution, then determining whether the evidence should be excluded because its probative value may be substantially outweighed by its prejudicial effect, confusion of the issues or misleading of the jury (see State v. Davis, 213 Kan. 54, 515 P. 2d 802). The phrases “absence of mistake or accident” as used in 60-455 are, of course, generally factors bearing on intent. Where an act in itself may be susceptible of two interpretations, one innocent and the other criminal, then the intent with which the act is done becomes the critical element in determining its character. The previous convictions here were of a similar nature to the offense charged, sufficiently so, we think, that they could properly be taken into consideration as casting light upon the issue of the intent with which appellant’s acts at the Hansen residence were done. We think the probative worth of this evidence sufficiently outweighed any possible prejudicial effect so as to render it admissible within the trial court’s discretion. Consequently it must be held the court did not err in this respect. Appellant asserts the trial court erroneously admitted into evidence over his objection the articles found by the arresting officers in the driveway under the parked Hansen automobile, namely, the sledgehammer, the two punches and the loaded pistol. Mrs. Hansen testified that when she returned home shortly before 10:00 p. m. Friday night there was nothing in the driveway where she parked her car. One of the arresting officers testified that when the two men fled it appeared they were throwing some kind of objects under the car. The tools found there shortly after the arrest are of a type used to facilitate wrongful entry into a locked building while the pistol is an item notoriously used by persons engaged in clandestine activities for protection and to aid in escape if discovered. In State v. Montgomery, 175 Kan. 176, 261 P. 2d 1009, this court stated: “The books are full of cases holding that where an accused is identified as having been at or near the scene of a crime about the time of its commission evidence showing that he owned, possessed or had access to any articles with which the crime was or might have been committed is competent.” (p. 180.) The location of the items when found and their nature, coupled with all the testimony, would have raised an inference that appellant and his codefendant were attempting to break into the house rather than just seeking a water hydrant. The exhibits were relevant on the issue of intent and the trial court did not err in admitting them (see State v. Jerrel, 200 Kan. 415, 436 P. 2d 973; State v. Gauger, 200 Kan. 563, 564-565, 438 P. 2d 463). Finally, appellant contends the evidence was insufficient to support the verdict of guilt. The contention has no merit. Admittedly the evidence was circumstantial and the jury was instructed on this aspect of the case. On appeal when considering the sufficiency of circumstantial evidence to sustain a conviction of crime, the question is not whether the evidence is incompatible with any reasonable hypothesis except guilt, as that question was for the jury and the trial court. The appellate court’s function is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt (State v. Rincones, 209 Kan. 176, 495 P. 2d 1019). The evidence here satisfies that test. Further discussion is not warranted. The judgment is affirmed. APPROVED BY THE COURT.	[ 81, -4, -3, -82, 59, 96, 42, -104, 113, -91, -16, -13, -87, -37, 1, 41, 27, 45, 84, 121, -53, -73, 7, 33, -46, -45, 35, -59, -77, 78, 116, -99, 28, 33, -38, 81, 98, -128, -3, 80, -114, 5, -103, -14, 16, 18, 32, 31, 118, 15, -79, -98, -29, 42, 20, -38, -55, 44, 106, 45, -96, -71, 42, 23, -55, 22, -93, 34, -102, -91, -8, 28, -99, 17, 0, -24, 51, -90, -118, 117, 79, 11, 12, 102, 2, 1, -19, -21, -88, -103, 14, 127, -67, 39, 29, 104, 0, 101, -97, -103, 48, 112, 14, 116, 119, -43, 29, -28, -92, -61, -44, -79, 77, 114, -106, -24, -45, 101, 102, 113, -55, -96, 86, 84, 115, 59, -118, -111 ]
The opinion of the court was delivered by Foth, C.: In the court below these were four consolidated actions brought by a taxpayer under K. S. A. 79-2005 to recover taxes paid under protest, covering first and second half taxes for the years 1970 and 1971, on seven oil and gas leases in Rush county. The controversy was over the value of the underlying reservoirs; no issue was raised as to the value of the equipment. The tidal court granted judgment for the taxpayer, and the defendant taxing authorities have appealed. Plaintiff taxpayer is an independent oil and gas operator who has, over the years, drilled numerous oil and gas wells in and around Rush county, Kansas. Commencing in 1966, he drilled several leases in Rush county, in the immediate area of the leases involved in this suit. The Lansing oil reservoir in this area was shown to be a short-lived gas drive reservoir. In all instances where production was obtained, the initial production for three to six months was quite high, followed by a steep decline. Plaintiff testified that, in his experience, to obtain maximum production from this type reservoir a well should be produced to its full capability in order to take advantage of the gas drive, which tended to dissipate in a short period of time regardless of the rate of production. Once the gas drive dissipated, movement of reservoir oil to the well bore ceased. It was plaintiff’s theory below, adhered to in this court, that in making the assessments for 1970 and 1971 the Rush county oil and gas assessor had ignored these known factors of productive well life in the area, which he characterized as initial high production, ensuing sharp decline, and short-lived wells. He points to K. S. A. 79-331, which requires an assessor of oil and gas leases to take into account, among other things, “the probable life of the wells.” He then relies on Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P. 2d 59, in which we held that where the legislature has “detailed the factors or combinations thereof to be considered by taxing officials” in assessing property, “State and local taxing officials may not ignore the standards prescribed, since the statute clearly requires consideration of the pertinent factors to specific property and of an assessment of specific property in conformity with its provisions. It requires no semantic niceties to conclude that consideration of the pertinent factors is mandatory to determine justifiable value.” (Id., p. 10.) It is defendants’ position, on the other hand, that this case involves merely a difference of opinion over value, where the good faith judgment of the assessor must prevail. They rely on Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791, where we held: “Generally, the only function of a court in matters of assessment is to make certain that a taxpayer has the benefit of the honest judgment of the assessing officers and unless the assessment is proven to be so out of proportion as to give reasonable assurance that officers could not have been honest in fixing its valuation, interference by courts is not justified.” 'In the absence of evidence that an assessment was arrived at fraudulently, arbitrarily or capriciously, a difference of opinion as to value is no reason for interference by a court.” (Syl. ¶ 2 & 3.) The issue presented to the trial court, then, was whether this was a case of a mere difference of opinion (Cities Service), or one of ignoring a statutory factor of value (Garvey). The trial court found it was the latter, and we are called upon to determine whether that finding was correct. The trial court made detailed and extensive findings of fact (67 in all) reviewing the evidence in general and as it related to each of the seven leases. No particular finding is challenged by the defendants, and only a few need be reproduced here. The court found that all leases in the area had a history of rapid decline in production after the first few months, which exceeded 50% in the second year. The assessor had employed a valuation schedule prepared by Dr. Charles F. Weinaug of the University of Kansas and adopted in its manual by the property valuation department. (The “Weinaug” schedule is discussed and generally approved in Cities Service Oil Co. v. Murphy, supra.) This schedule contains factors designed to account for production declines up to 50%. The court went on to find: "16. The state manual is a useful tool in effectuating the statutory mandate that oil reserves should be assessed at 30% of value, if it is properly applied to realistically estimate the value of the reserves. Where it is evident that production will rapidly decline, appropriate application of decline factors is essential to give a fair evaluation of a producing oil lease. If such appropriate decline factors are not used in instances wherein rapid decline occurs, it will result in arbitrarily excessive valuation of the lease based on oil reserves which are non-existent.” (Emphasis added.) It also found that the data reflecting actual production for each lease, reflecting the rapid decline, had been furnished to the assessor in time for his consideration in making both the 1970 and 1971 assessments. These general findings were followed by detailed findings as to each of the seven leases in question, concluding as to each that the assessor had either ignored altogether the manual’s provisions for rapidly declining production, or had applied a decline factor based on an assumed production which was substantially higher than the known actual production. After its lease-by-lease findings, the court summarized: "62. In summary, the uncontradicted evidence discloses that the assessor made a fictional assumption that production from the leases would continue for years at a relatively constant rate. He did not consider and apply the factual data showing the rapid declines in production which occurred and were occurring. Taxpayer had drilled about 150 wells in four townships of Rush County in this area, and had drilled 13 Lansing oil leases capable of some oil production in the immediate area, as of January 1, 1970. This was virtually all the Lansing oil production in the county. The assessor had no petroleum production or engineering experience, and so admitted. But in assessing the leases he ignored undisputed, completely documented facts showing the rapid decline. The information available on the 13 leases was presented to the assessor. As of January 1, 1970, the producing history on 5 of them had closed, all showing rapid decline in a few months or less, with a total productive life before plugging from one month to 19 months. The Urban G had declined from 5,635 barrels in March, 1968, to 1,948 barrels in January, 1969, (despite two new wells drilled in May and October, 1968), to 977 barrels in December, 1969. The Stremel, Buxton and Basgall B each had proved that production would rapidly decline in a few months from a new well or new zones in a well. The remaining four leases (Burgardt A, Basgall C, Urban J and Lippert A) had produced only three or four months in late 1969, so that it was inevitable that such leases would rapidly decline (as they did) during 1970. In May, 1970, when taxpayer requested consideration of the fact the leases would rapidly decline, the leases were in fact at that moment rapidly declining far below the levels which the assessor arbitrarily assumed would produce for years at a higher rate of production than was then occurring. Taxpayer presented detailed production graphs and all other information to the assessor. The assessor had no basis for his assumption. “63. The corrected rendition by plaintiff for 1970 and 1971 fairly represent 30% of a fair market value. (Prior findings; Angle). “64. The valuations testified to by defendants’ engineering witness admittedly assumed a relatively stable production for 5 years. (Nicodemus). As such, the refusal to recognize the known rapid decline in all new production in the area after a few months’ time, or less, renders such valuations useless. To ignore these known facts; and to base assumptions on general state averages which are not applicable to these leases, must be considered arbitrary because they are not based on recoverable reserves and ignore the actual productive life of the leases. “65. All pertinent facts proved, and the assessor knew when he made his 1970 assessments, that all the leases involved were then rapidly declining, that none of them were even making state allowables, and that the leases would continue to rapidly decline during 1970. Nevertheless, on the Burgardt A, Basgall C, Basgall B, Urban J and Lippert A leases, the assessor arrived at values based upon the assumption that such wells would make far in excess of their allowables for 18 months after January 1, 1970, and would continue to make allowables for a period of five years (based on the value factor and barrels he used). On the other lease (Urban G) he also used high production figures based on prior year’s production when such lease was rapidly declining and he knew it. (See finding No. 43). The assessor did not give consideration to the sharp anticipated decline, and did not apply the state manual provisions applicable thereto, and admits that he did not do so. The valuation made in disregard of the actual facts pertinent to value also necessarily failed to give consideration to the actual productive life of these leases. “66. All pertinent facts available at the time of the 1971 assessment showed a continuing rapid decline. As to 1971, the assessor on all leases, except the Urban J, failed to give effect to the known extent of decline in production, and thus failed to give consideration to the actual productive life of these leases. “67. By 1972, most of the production involved had become economically marginal, and the low production leveled out at a small rate of production. Plaintiff has testified that the 1972 assessments by the assessor on these leases were about the same as his renditions. This has resulted because the production has now leveled out at a low but relatively constant rate, and further sharp declines are no longer possible. The fact that the assessments by the assessor dropped from extremely high values to nominal values within two years is no evidence that the leases are presently being undervalued by the assessor. Rather, this fact indicates that the assessments initially were arbitrarily excessive, being based on assumed constant high production, when rapid decline was obvious from the known facts.” In its conclusions of law the trial court took notice of the assessor’s duty to consider the “probable life of the wells” under K. S. A. 79-331, and went on to say: “8. The value of oil and gas leases (aside from equipment value) rests primarily upon the amount of economically recoverable reserves, and the time it will take to recover them. This in turn depends upon the rate of production during the productive life of the lease. “9. Because of differences in characteristics of oil reservoirs, the producing history of wells from the same or similar producing reservoirs on, and in the area of, the assessed lease must be considered in arriving at the recoverable reserves and the productive life of the lease. Application of state averages involving other types of formations and oil reservoirs, which are not comparable to the leases being assessed, must be considered arbitrary. “10. The state schedules for 1970 and 1971 are useful tools in effectuating the statutory mandate requiring a determination of 30% of reasonable and fair value, provided they are applied so as to give appropriate effect to anticipated rapid decline in production, and to realistically estimate actual reserves on a fair basis. If used to estimate future reserves and production based on constant production for a period of years, when all facts are contrary to that assumption, the resulting assessments necessarily ignore the statutory factors required to be given effect as to each lease, and are thus arbitrary and invalid as a matter of law. See Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 13. The assessment is invalid and illegal, even though made in good faith. Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, at 13. “11. Since the assessor admitted he had not given effect to the anticipated rapid decline in production on these leases, and the uncontradicted evidence showed that his valuations were predicated on constant, nondeclining production, contrary to the known and undisputed facts, the assessments in question must be held invalid. In those few instances where the assessor considered some decline in production he ignored the actual rate of decline in production so as to arrive at a higher valuation. Such assessments must also be held arbitrary and invalid because they failed to give effect to the actual facts then known. A method of valuation based solely on barrels of oil produced during part of a preceding year, without reference to other pertinent facts affecting market value, is ‘unquestionably void.’ Richardson v. State, 53 S. W. 2d 508, at 510 (Tex.).” (Emphasis added.) The result was the judgment appealed from, finding five of the wells overvalued in both 1970 and 1971, one well in 1970 alone and another in 1971 alone. In their statement of points defendants, as noted above, make no attack on any particular finding of fact. They do assert generally that “It was error to find the assessor failed to give consideration to known production decline in making his assessments for the year of 1971.” We assume that assertion is based on the testimony of the assessor that for 1971 “he did take into consideration the decline factors, according to the schedule.” However, he also testified that the manual was not designed to — and he did not — take into account declines of over 50%, which was the actual experience of these leases. Lip service to a legislative mandate is not enough. Cf. Garvey Grain, Inc. v. MacDonald, supra, 203 Kan. at 14. We conclude that the trial court’s findings that the assessor did not give appropriate consideration to the probable life of the wells is supported by the record. This conclusion effectively answers defendants’ arguments, advanced in their brief, that (1) “The assessor was not arbitrary or capricious;” (2) “Appellee was arbitrary in disregarding his production history of prior years;” and (3) “Appellee has failed to prove constructive fraud.” Once it is determined as a matter of fact that the assessor has failed to give proper consideration to a statutory element of value, under Garvey there is arbitrary and capricious action amounting to constructive fraud, regardless of the subjective good faith of the assessor. Defendants also argue that “Appellee seeks to avoid paying his fair share of taxes.” They base this on the idea that where an operator rapidly depletes the reserves under his lease “most of his off escapes taxation while the operator following the normal procedure pays a tax on each barrel produced.” We think this argument mistakes the incidence of the tax. What is assessed is the lease, not the oil produced. Production is merely one gauge by which the value of the reservoir, and in turn the lease, is measured. It is apparent that a reservoir which has been largely drained as of a particular January 1, has less value than one which has not. The trial court answered this argument in its letter opinion: “. . . The plaintiff possibly produced the wells too rapidly; but this practice, if unsound, is to be corrected by an agency, (probably KCC), which is set up for that purpose and not by the [county] Commissioners. The assessment is made ‘as of January 1/ It is of personal property. When it is excessive and known to be by the assessor, it is wrong to use the excessive value and excuse its excessive assessment use by saying that it will be too low next year. Dr. Weinaug’s schedule is a careful and well-considered one; but it does not allow for unusual operators, such as Mr. Angle; and it really can’t, as it would be too involved if it did. The taxing authorities must accept Mr. Angle and his oil properties as they really are ‘as of January 1.’ Anything else would be arbitrary and wrong.” Finally, defendants argue that “The trial court’s decision is bad precedent and public policy.” By this contention they suggest once again that the trial court substituted its opinion for that of the assessor. If this were so they would, of course, be right, and the judgment could not stand. Judicial intervention of that kind in the assessment process is prohibited by Cities Service and a host of other cases. But we have pointed out above that this is not that kind of a case. The trial court found as a matter of fact that in exercising his judgment the assessor deliberately ignored a statutory element of value. That finding is essentially unchallenged, and is supported by the record. The case, therefore, falls into the mould of Garvey, not that of Cities Service. The judgment is affirmed. APPROVED BY THE COURT.	[ -12, -22, -16, 60, 8, -32, 42, 25, 73, -13, -12, 83, -27, -37, 5, 121, -37, 85, 117, 106, -45, -73, 71, -63, -124, -69, -7, -52, -72, 93, -20, -41, 8, 48, -54, -43, -94, -126, 87, -36, -114, -128, -104, -19, -40, 0, 54, 107, 114, 75, 113, -115, 115, 41, 29, -61, 13, 36, -37, 46, -61, -15, -22, -97, 79, 20, 16, 70, -108, -61, -56, 14, -110, -72, 40, -20, 123, 38, -60, -11, 15, -69, -115, -90, 99, 49, 21, -49, 108, 24, 15, -42, -115, -25, -46, 24, 99, 10, -106, 29, 124, 6, 5, 126, -18, -108, 95, 125, -105, -34, -42, -95, 15, 101, -104, 17, -25, -125, 18, 97, -113, -94, 92, 71, 114, 31, 7, -66 ]
Per Curiam: Appellants were convicted of attempted felonious theft. On appeal it is claimed that the evidence does not support the charge of attempt under K. S. A. 1973 Supp. 21-3301, but presents a case only for a completed theft as defined by K. S. A. 1973 Supp. 21-3701. The evidence showed that the defendants, while in a K-Mart store in Johnson County, took an empty hamper box and surreptitiously filled it with merchandise of the store of the value of $197.54. They sealed the box with tape and attempted to walk through the check-out stand by offering to pay only for the box presumably containing the hamper, for its marked price of $9.88. The matter may be quickly disposed of. If the defendants had been charged with theft, it would have been for the jury to determine whether the theft had been completed by an unlawful taking when the goods were placed in the box, or whether doing so was an overt act toward the commission of an attempt to take the property from the store without paying for it. The plans of the defendants to deprive the store of its property by taking it from the store concealed in the hamper and without paying for the merchandise were thwarted by the cashier, and the attempt failed. The evidence was more than ample to support the charge of attempted theft. It was a question for the jury, and the conviction must stand. In passing we should mention that former K. S. A. 21-102, providing that there should be no conviction for an attempted offense when a perpetrated offense was shown, has been repealed. That statute, prior to its repeal, was a mandate for an appropriate instruction to the jury. But the issue of whether there was a completed appropriation of property or a thwarted attempt evidenced by an overt act was, and is always, a jury question unless the evidence is so conclusive as to preclude submission of one in favor of the other. The evidence in this case does not conclusively exclude submission of the case on the charge of attempt. The judgment is affirmed.	[ -48, -20, -7, 61, 10, -32, 43, -102, 67, -89, 55, 19, -83, -62, 5, 123, -9, 109, 80, 120, -50, -73, 47, -45, -42, -69, -40, -59, -16, 75, -90, -44, 76, -16, -62, -11, 70, -118, -27, 94, -118, 4, -72, 82, -15, 2, 44, 42, 54, 3, -15, 30, 115, 40, 30, -57, 105, 44, 75, 63, -64, -16, -77, 5, 127, 22, -95, 36, -103, 69, -40, 47, -100, 48, 0, -24, 114, -90, -122, 116, 75, 27, -124, 102, 98, 32, 29, -17, -84, -120, 46, 119, -67, -89, -112, 88, 73, 45, -98, -99, 117, 50, 14, -4, -9, 20, 15, 124, 3, -17, -12, -77, 13, 112, 0, -69, -1, -79, -78, 113, -50, -26, 94, 86, 48, -85, -50, -43 ]
The opinion of the court was delivered by Foxh, C.: Appellant was convicted by a jury of felony first degree murder and he appeals. His prosecution arose out of the September 4, 1972 robbery of $33.30 from the U-Totem Store No. 502 at 846 Central Avenue, Wyandotte County, Kansas. During the course of this robbery the appellant exhibited, in a threatening manner, a .22 caliber revolver with black electrician’s tape on the handle. When the fruits of the robbery turned out to be much less than expected the appellant held the revolver to the head of the store clerk, one Dennis Ingram, and demanded the rest of it. When the rest was not forthcoming the appellant pulled back the hammer on the revolver and fired. The bullet struck the victim in the eye and caused his immediate demise. The appellant and his confederate in crime, Bobby Charles Osbey, were apprehended immediately upon leaving the store. A more detailed account of the facts of this crime are set out in the companion case of State v. Osbey, 213 Kan. 564, 517 P. 2d 141, where the conviction of the appellant’s confederate was affirmed. Overall the appellant claims six trial errors. Of these, four were considered in some degree by this court in State v. Osbey, supra, and no error was found. Two are peculiar to this case and will be considered first. Appellant, a black man, first contends that the trial court should have sustained his objection to the jury panel because it was not representative of the racial make-up of the surrounding community. This contention is based upon the fact that the sixty member jury-panel contained five blacks, or 8.5%, while the community at large, according to the appellant’s estimate, is 20 to 25% black. In dealing with such claims of discrimination this court looks to the method of selection of the jurors and not merely the racial make-up of a particular jury panel. A defendant is not necessarily entitled to be tried by a jury with even a single member of his race thereon. Lee v. State, 204 Kan. 361, 461 P. 2d 743; Scoggins v. State, 203 Kan. 489, 454 P. 2d 550; Swain v. Alabama, 380 U. S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759. He is entitled, however, to have a jury panel drawn from a fist which is free from systematic and purposeful discrimination. Lee v. State, supra; State v. Stewart, 208 Kan. 197, 491 P. 2d 944. No evidence of such discrimination appears in this record. The appellant makes no claim that the list from which these jurors were drawn was not reflective of the racial make-up of the community. He makes no claim that the method used in selecting this panel from the master list was in any way designed to' purposefully exclude members of his race. The trial court, in considering the appellant’s motion for a new trial, took judicial notice of the fact that this panel was obtained by use of a data processor and that “we have no way of telling how many blacks and how many whites we are going to get. This is taken from the census enumeration rolls and the voter registration rolls.” The appellant bases his claim on the racial make-up of this one jury panel. That is not enough. Further, even if his claim were discrimination in the compilation of the master roll from which the panel was drawn, some proof would be required. A bald assertion in appellant’s brief does not establish a prima facie case. Scoggins v. State, supra; State v. Brothers, 212 Kan. 187, 510 P. 2d 608. Appellant’s second new contention is that the trial court should have instructed on lesser included offenses. While it is the requirement of K. S. A. 1973 Supp. 21-3107 (3), that instructions on lesser included offenses be given, this duty arises only where there is evidence of circumstances under which the appellant might have reasonably been convicted of the lesser offense. State v. Masqua, 210 Kan. 419, 502 P. 2d 728. In the past this court has held that in a murder committed during the commission of a felony the usual rule requiring instructions on lesser included offenses does not apply. State v. Germany, 173 Kan. 214, 245 P. 2d 981; State v. Masqua, supra. If a murder is committed while engaged in a felony the felonious conduct itself is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder. State v. Osbey, supra; State v. Keleher, 74 Kan. 631, 87 Pac. 738. Therefore, to support a conviction for felony murder all that is required is to prove that a felony was being committed which was inherently dangerous to human life, and that the homicide was a direct result of the commission of that felony. State v. Moffitt, 199 Kan. 514, 431 P. 2d 879, Syl. ¶ 5. If such proof is produced the only possible oonviction can be that of first degree murder under the felony minder rule. This reasoning is aptly explained in State v. Masqua, supra, where the appellant was charged with first degree murder and forcible rape. His request for an instruction on the lesser included offenses of second degree murder and manslaughter was denied. This court, in upholding the trial court’s denial of the instruction, stated: “. . . It follows that if the appellant was present at the rape, the mere participation in that felony would supply the elements of deliberation and premeditation, both of which must be absent from second degree murder and manslaughter. Either the rape was perpetrated by the appellant and he necessarily is responsible for the murder, or he was not present at the rape where tire killing occurred and not guilty of any degree of homicide.” (P. 425.) So here, either appellant was present when the robbery and attendant murder occurred, or he was not. An instruction on lesser included offenses would have been inappropriate. The remaining four allegations of error were all considered in State v. Osbey, supra. We note them briefly here, and the reader is referred to the opinion in Osbey for a more detailed explanation of the court’s reasoning. The first of these results from the voir dire examination of the prospective jury. The trial court refused to allow defense counsel to question the jury panel as to their feelings concerning the re quisite intent for an individual to commit a crime. In dealing with this identical issue in Osbey, the court invoked the rule that the “extent of examination of jurors on voir dire rests largely in the discretion of the trial court and this court will not interfere unless abuse of discretion is clearly shown (State v. Guffey, 205 Kan. 9, 468 P. 2d 254).” (P. 569.) The court found that no prejudice or abuse of discretion on the part of the trial court appeared. The second is based upon the trial court’s granting permission to the district attorney to amend the information after the jury had been, selected and sworn. The year “1972” had been omitted after the day and month in the information, and its insertion was allowed. In the Osbey case the complaint was directed, not at the granting of motion to amend, but at the state’s failure to insert the missing year after the permission to do so had been granted. The court considered this to be a “simple clerical omission” and no prejudice was found. In State v. Hill, 211 Kan. 239, 505 P. 2d 704, the amending of an information after the jury had retired but before the verdict was handed down was upheld by this court. In that case the information incorrectly stated that the gun used in a murder was an automatic when in fact it was a semi-automatic. The court stated, “The amendment did not in anywise change the nature of the crime charged. It simply was in accord with the evidence adduced. . . . The amendment came as no surprise to appellant and manifestly he was in nowise prejudiced by it.” (P. 242.) There was no claim of surprise by the appellant here. There was certainly no change in the nature of the crime charged. As carefully noted by the court in considering this amendment in Osbey, “There is no statute of limitation for the offense of murder (K. S. A. 1972 Supp. 21-3106 [1]), appellant well knew the year of the alleged offense. . . .” (P. 569.) No error appears to this court in allowing this amendment. The third claim goes to the use by the district attorney of witnesses and a photograph for the purpose of describing the condition of the victim and the cause of death, despite the offer by appellant to stipulate to those facts. There being no question as to the death or its cause, so the argument goes, the only purpose for the introduction of such evidence was to inflame the jury. As to the photograph itself, it was carefully shielded from the jury’s view while it was being identified. When it was offered the court sustained the objection of the appellant and did not admit it into evidence. This allegation was considered by the court in Osbey and summarily rejected as being “utterly frivolous.” As to the testimony identifying the photograph, the prosecution assumes the burden of proving, as part of its case in chief, all elements of the crime charged. The testimony of witnesses to prove these elements, including the fact and manner of death, the violent nature of death, and to corroborate the testimony of other witnesses, is relevant and admissible. This is true even if the appellant concedes the death and cause of death of the victim. State v. Campbell, 210 Kan. 265, 500 P. 2d 21; State v. Martin, 206 Kan. 388, 480 P. 2d 50. A review of 'the record fails to reveal any particularly graphic or gruesome descriptions of the victim which would tend to prejudice the jury. The references to the body and its condition were made either as identification or as part of a description of the events of the evening and were not in any way dwelled upon by the prosecution. They were not, in this court’s view, prejudicial or inflammatory. In the last point which was touched upon in the Osbey case the appellant claims that the chain of custody of several incriminating items was broken and therefore their introduction into evidence was error. The appellant’s complaint here is expressed in more detail than it was in the Osbey case, but it is essentially the same. The court in that case found the appellant’s complaint to be “trivial.” In considering this objection anew the court has made a careful trace of the chain of custody to each item in question. As to the money and the .22 caliber shells, taken from Osbey immediately after the murder, there is a clear and uncontradicted chain of custody. As to the gun and the spent bullet taken from the brain of the victim, there is conflict in the testimony of the witnesses as to who had possession of the objects at certain particular times. Nothing appears, however, that would destroy the reasonable certainty that no material alterations of the objects occurred. That is the test that must be applied. State v. Tillman, 208 Kan. 954, 494 P. 2d 1178. Even if the chain of custody of these items was such as to destroy the reasonable certainty that they were not the ones used in the crime, their admission would not be prejudicial to the appellant. There is ample evidence, through the uncontraverted testi mony of several witnesses, to sustain the conviction of the appeEant without ever introducing these into evidence at aE. There is no question that this appeEant shot the victim in the head at the time of the robbery. There is also no question that the victim died shortly thereafter of that gunshot wound. Whether it was this particular gun or buEet or some other is entirely immaterial. Even if there was error in the admission of tins evidence —and this court makes no suoh finding — it was nonprejudicial. We find no merit in appellant’s allegations of error and the judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Owsley, J.: The plaintiff, Winifred J. Jolly, was denied accidental death benefits for the death of her husband, Jack E. Jolly, by the Board of Trustees of the Kansas Public Employees Retirement System (hereinafter called KPERS or Board). On review, the district court awarded benefits. The issue on appeal involves an interpretation of K. S. A. 1970 Supp. 74-4916 (2), (now K. S. A. 74-4916 [2]). Jack E. Jolly was employed by the State of Kansas as a correctional officer. His service commenced August 16, 1967, and he was a member of KPERS on the date of his death. He was thirty-six years old, and on October 11, 1970, he was working as supervisor of the honor camp mobile unit located at Perry Reservoir. His activities as supervisor included supervising other correctional officers assigned to maintain order and discipline; holding disciplinary hearings on serious infractions of rules; and participating in shakedowns of inmates and camp inspections. It was also Jolly’s responsibility to see that the inmates followed the work procedures and rules set down by the superintendent of parks and the supervisor of honor camps. Sworn statements of those who witnessed the events of October 11, 1970, recount that sometime prior to breakfast, Jolly confronted two inmates over a camp rule against wearing sweatshirts as outer garments. It is undisputed that Jolly became extremely angry, that the argument was violent and included abusive language, and all individuals concerned shouted at various times. Exact details are not clear, but there is at least one report by a witness that one of the inmates took off his sweatshirt and threw it at Jolly, striking him in the face. Following this confrontation, Jolly remained visibly angry and left the immediate area. Approximately thirty minutes later, he was found unconscious and was rushed to a hospital in Topeka where he was pronounced dead. The certificate of death lists the immediate cause of death as acute myocardial ischemia and the underlying cause as severe coronary atherosclerosis. The medical evidence was undisputed that Jolly had a preexisting severe coronary disease. The plaintiff, Winifred J. Jolly, filed a claim for accidental death benefits pursuant to K. S. A. 1970 Supp. 74-4916 (2) for herself and her four minor children. Accidental death benefits consist of one-half of deceased member’s final average salary payable in monthly installments until the surviving spouse remarries and the youngest child attains age eighteen. After a proper administrative hearing at which Mrs. Jolly was represented by counsel the Board made the following findings: “7. At the time of his death, Mr. Jolly was suffering from coronary atherosclerosis and had been in this condition for a period of years. “8. Mr. Jolly’s death was not attributed to any physical activity. The emotional stress and strain to which he was subjected on the day of his death was of a nature that a normal individual would not have suffered any serious results. “9. Mr. Jolly’s death was not, independent of all other causes, the result of an accident arising out of and in the course of his actual performance of duty in the employ of a participating employer as required by K. S. A. 1971 [sic] Supp. 74-4916 (2).” The plaintiffs appeal was considered on the record made before the Board. Pursuant to motions for summary judgment and briefs of counsel for both sides, the trial court reversed and KPERS appeals from that decision. The Kansas Public Employees Retirement System Act was enacted in 1961 (K. S. A. 74-4901, et seq. [Vol. 5, 1964]). The original act provided that upon the death of a member before retirement, his accumulated contributions would be paid to his beneficiary (K. S. A. 74-4916 [Vol. 5, 1964]). In 1965 the legislature broadened the death benefits by enactment of Section 4, Chapter 446, Laws of 1965. In 1967 the legislature again amended the statute by enactment of Section 3, Chapter 427, Laws of 1967, which provides: “(1) Upon the death of a member before retirement, his accumulated contributions shall be paid to his beneficiary. “(2) (a) In the event that a member should die before retirement as a result of an accident arising out of and in the course of his actual performance of duty in the employ of a participating employer independent of all other causes and not as the result of a willfully negligent or intentional act of the member, an accidental death benefit shall be payable if a report of the accident, in a form acceptable to the board, is filed in the office of the executive secretary of the board within sixty (60) days after the date of the accident causing such death and an application for such benefit, in such form and manner as the board shall prescribe, is filed in the office of the executive secretary of the board within two (2) years of the date of the accident, but the board may waive such time limits for a reasonable period if in the judgment of the board the failure to meet these limits was due to lack of knowledge or incapacity: Provided, That the board finds from such evidence as it may require, to be submitted in such form and manner as it shall prescribe, that the natural and proximate cause of death was the result of an accident arising out of and in the course of the member’s employment with a participating employer independent of all other causes at a definite time and place. Such accidental death benefit shall be an annual amount of one-half (½) of the member’s final average salary to accrue from the first day of the month following the date of death and payable in monthly installments or as the board may direct to the surviving spouse of such deceased member, such payments to continue so long as such surviving spouse shall live or until such surviving spouse remarries or if there is no surviving spouse, or in the case the spouse dies or remarries before the youngest child of such deceased member attains age eighteen (18), then to the child or children of such member under age eighteen (18), divided in such manner as the board in its discretion shall determine, to continue until the youngest surviving child dies or attains age eighteen (18). All payments due hereunder to a minor shall be made to a legally appointed guardian of such minor as provided in K. S. A. 74-4902 (7). “(b) In construction of this section of the act there shall be no presumption that the death of the member toas the result of an accident nor shall there be a liberal interpretation of the law or evidence in favor of the person claiming under this subsection. In the event of the death of a member resulting from a heart, circulatory or respiratory condition there must be clear and precise evidence that death was the result of an accident independent of all other causes which arose out of and in the course of the members actual performance of his duties in the employ of a participating employer.” [Italics supplied.] The italicized provisions of the statute were added by the 1967 amendment. The 1965 statute is revealed by eliminating the italicized provisions. In Shapiro v. Kansas Public Employees Retirement System, 211 Kan. 452, 507 P. 2d 281, the plaintiff claimed death benefits under the 1965 statute. Shapiro’s death was due to an acute coronary occlusion occurring in the office of his attending physician. We permitted recovery on the ground the 1965 statute was similar to provisions of the Workmen’s Compensation Act, and our decisions under that act were persuasive. We pointed out that under the Workmen’s Compensation Act we had construed “accident” to include “accidental result,” and benefits were not limited to “accidental cause.” We also stated that even though death may be from a routine performance of duty not in any sense accidental, recovery is granted if the effect of the work was unexpected, undesigned and sudden, and therefore accidental, citing Meyers v. Consolidated Printing & Stationery Co., 201 Kan. 806, 443 P. 2d 319. This court is committed by a long line of decisions to a liberal construction of the Workmen’s Compensation Act in order to award compensation where it is reasonably possible to do so. (See Hatcher's Kansas Digest, Workmen's Compensation, § 4 [Rev. Ed. Vol. 5 and Rev. Ed. Perm. Supp. Vol. 4-6].) The definition of “accident,” in Shapiro, undoubtedly resulted from this rule of construction. Although the definition is a broad and liberal one, we do not question the rationale of the court in Shapiro in employing the workmens compensation concept of accident. We are, however, now faced with the construction of an act which legislative direction states shall not be subject to liberal construction. The fundamental rule of statutory construction to which all mere rules of interpretation are subordinate is that the intent of the legislature, when ascertained, must govern. (State v. Bancroft, 22 Kan. 170.) It is the duty of the court to ascertain and make effective the legislative will rather than determine what the law should or should not be. (Denton v. West, 156 Kan. 186, 131 P. 2d 886.) It is obvious the legislature, by the 1967 amendment, intended to restrict the coverage of accidental death benefits. In view of its prohibition against liberal construction, we must conclude the legislature was attempting to prevent the liberal rules of construction applied in workmen’s compensation cases from being applied to the accidental death benefit provisions of KPERS. In view of this, we feel we have been' directed to re-examine the construction placed on “accident” in the Shapiro case. The “accidental result” concept we applied in Shapiro to permit recovery of death benefits must be re-examined in the light of the amendment. We believe the elimination of the “accidental result” concept would be a reasonable interpretation of the legislative will. Absent “accidental cause” the effect of this construction would eliminate recovery of benefits for death resulting from pre-existing dormant diseases or physical infirmities, even though aggravated by normal work-related activities. It follows that accidental death benefits under the 1967 amendment would be limited to accidental causation. We have defined “accident” in cases other than workmen’s compensation in the following language: “The word accident does not have a settled legal signification. It does have, however, a generally accepted meaning, which is the same whether considered according to the popular understanding or the approved usage of language. An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force. . . .” (Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, p. 773.) Any effort to further define “accident” requires consideration of language used in the amendment that reveals legislative intent. Some significance must be given to the requirement that the accident occur at “a definite time and place.” The elimination of liberal interpretation and the "accidental result” concept places around this phrase a connotation which destroys the reasoning employed in its construction in Shapiro. We have attempted to give consideration to the language of the amendment and each part thereof with regard for its general purpose. This, combined with what we have said with relation to the meaning of the word “accident” in many decisions of this court, dictates what we believe are reasonable results. We conclude the 1967 amendment intended to eliminate accidental death benefits for “accidental result” and to provide benefits for death from “accidental cause.” Death benefits are recoverable when death is a direct and natural result of an accident. An accident is a sudden and unexpected incident occurring at a definite time and place. The routine, normal, and expected occurrences in the course and scope of a members employment are not “accidents” under the amendment. The incident out of which this claim arose must be tested in the light of the foregoing. The decedent was charged with the duty of maintaining order and discipline. This duty could only be fulfilled by confrontations with inmates. Such confrontations were necessarily expected. To label such confrontations as “accidents” would require a liberal construction which the- amendment prohibits. In view of this, we must deny accidental death benefits to the plaintiff and reverse the decision of the trial court. The defendant urges we construe the requirement that death be the result of an accident “independent of all other causes” to prevent recovery when a pre-existing physical condition contributes to the death. The provisions of subsection (2) (6) of the act are contrary to this construction. Subsection (2) (b) provides there must be dear and precise evidence that death was the result of an accident “independent of all other causes” before acddental death benefits can be recovered when a member dies as a result of a heart, circulatory or respiratory condition. This provision contemplates there may be recovery even though there is a preexisting heart, circulatory or respiratory condition. To construe the phrase, “independent of all other causes,” in the manner urged by defendant would have the effect of nullifying the right to recovery given by subsection (2) (b) upon proof that death was the result of an accident as defined herein. The foregoing is consistent with Williams v. Benefit Trust Life Ins. Co., 200 Kan. 51, 434 P. 2d 765, and Boring v. Haynes, 209 Kan. 413, 496 P. 2d 1385. Each of these cases involves a claim of an insurance company that a dormant disease or physical infirmity which contributes to the death or disability of an insured is a defense to an action for accidental bodily injury or death. In Williams, it was said: “Where an accidental injury activates or aggravates a dormant disease or physical infirmity, the accident may be said to have been the proximate cause of the resulting disability within the usual provisions and ordinary meaning of a policy insuring against accident. “In the event an insured sustains physical disability resulting from an accidental injury which aggravates or causes a dormant disease or ailment to become active, the disability will be regarded as having been caused solely by the injury, so as to render an insurer liable therefore under an accident policy, even though such disability might later have resulted regardless of the accident, and even though the accident might not have affected a normal person to the same extent.” (Syl. ¶¶ 1 and 2.) The judgment is reversed with directions to enter judgment for the defendant.	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The opinion of the court was delivered by Harman, C.: This is a divorce action in which the defendant husband appeals from the judgment of divorcement, child custody and property division. Much of the testimony offered by the parties in a three day trial was of a controverted nature. The interest of no one would be served by chronicling more than an outline of that evidence. Sandra L. Bratcher and David L. McClaren were each reared on farms near Lewis, Kansas. Each was a member of a highly respected family in that community. David farmed with his father and upon completion of high school devoted full time to that occupation. Sandra was a Methodist, David a Jehovah’s Witness. David was five years ahead of Sandra in school. The couple began dating when Sandra reached high school and continued to do so intermittently for about two years. Sandra became pregnant by David and, although Sandra was reluctant to enter into that which she considered a forced marriage, the couple was wed September 2, 1960. They now have two children, a son born April 11, 1961, and a daughter born August 19, 1963. Sandra testified that despite her best efforts to do so she was unable to adjust to the weekly religious meetings and visitations expected by David’s church and she never converted to that faith. Difficulties based on religious differences surfaced early in the marriage. These differences, plus the fact David worked long hours in carrying on large-scale farming operations so as to limit their mutual activities, appear to have been focal points in the eventual marriage breakdown. For some time prior to the divorce Sandra acknowledged she had had adulterous relations with two different men. Sandra’s adulterous acts were concealed from David and from their friends. Other evidence will be mentioned in connection with the points raised on appeal. In her petition filed April 12, 1971, Sandra sought divorce on the ground of incompatibility. She also asked for custody of the two children, child support and property division. David cross-petitioned for divorce on the ground of adultery and for custody of both children. Thereafter resort to marriage counseling failed to effect reconciliation and trial was had upon all issues. The trial court on May 11, 1972, found each party was in equal fault for the marriage failure, that they were incompatible and each was granted a divorce from the other because of their equal fault. The court awarded custody of both children to Sandra with liberal visitation rights in David, it ordered David to pay $400.00 per month child support and to provide health and accident insurance and medical and dental expense for the children, and made a division of the parties’ property. At the time of trial Sandra was working as a clerk-receptionist in the school system at Pratt, Kansas, where she had moved, and the court specifically found there was no need for an award of alimony to her. A trial error alleged by David should be considered first. The precise point is that the trial com! erred in not permitting him “to develop the adulterous conduct” of Sandra (our emphasis). There is no contention that evidence of Sandra’s misbehavior was excluded. She admitted adultery with two men, one of whom she testified she intended to marry as soon as she was free to do so. Once these admissions were made the trial court expressed considerable concern over hearing further details of her extra-marital activity. The stated reason for the court’s reluctance in this regard was that a record of maternal misconduct might in future years prove embarrassing and harmful to the children and that such testimony was unnecessary. Unwarranted limitation of relevant evidence in a judicial proceeding cannot be approved. Here, however, the essentials of the adulterous conduct were made known to the trial court, there was no indication o£ further evidence beyond that of a cumulative nature which would have been helpful to the court in deciding the issues and we cannot say it abused sound discretion in the statements or rulings made respecting the development of this kind of evidence. David complains the trial court erred in failing to make specific findings of fact respecting the grounds of the divorce. The court did prepare a fairly elaborate written memorandum of its decision. It did decline to make detailed findings of fact respecting the fault aspect but in its journal entry of judgment it found that the allegations of each of the parties’ petitions requesting divorce were true and correct, and as heretofore stated, in addition to the finding of incompatibility, granted each a divorce for the fault of the other. We think the court sufficiently stated, both expressly and by necessary implication, the factual basis for its decision. Without going further into the matter, there was evidence of incompatibility as alleged by Sandra and adultery relied on by David, and the trial court had authority to grant a divorce to each of the parties who had proven his cause (K. S. A. 60-1606). David asserts the trial court erred in awarding to Sandra custody of the two children in view of her admitted misconduct and the stated preference of the son to be with his father. In Greene v. Greene, 201 Kan. 701, 443 P. 2d 263, the mother admitted misconduct with other men and one son expressed a preference to be with his father. The mother was awarded custody of the minor children by the trial count. This court affirmed and stated the following rules: “When the issue of custody is between parents, the paramount consideration of the court is the best interests and welfare of the children, and in the absence of abuse of sound judicial discretion, the trial court’s judgment determining the issue will not be disturbed on appeal. [Citations] Although from the facts disclosed here we might not have reached the same conclusion as that of the trial court had we been determining the question initially, we are unable to say there was insufficient evidence to sustain the court’s judgment, or that the record affirmatively shows there was a manifest abuse of discretion. We have only the printed page, whereas the trial court, in considering the best interests of the children, had the advantage of seeing the witnesses and parties, observing their demeanor, assessing the character of each parent and the nature and quality of their affection and feeling for the children. If, as time progresses, circumstances require a change or modification of the custody order, the trial court has continuing jurisdiction to act pursuant to K. S. A. 1965 [now 1967] Supp. 60-1610 (a).” (p. 704.) Marital misconduct such as adultery is a pertinent factor to be considered in a divorce proceeding in determining which parent should be awarded custody of the parties’ children but it is not in and of itself the controlling factor. In Greene this court also stated: “A child’s preference in custody matters may, of course, be considered as an aid to the court in making a proper order. [Citation] Such preference, however, is always subordinate to the over-all best interests and welfare of the child. Thus, when there are objective factors affecting the child’s welfare that are contrary to his wishes, the latter must yield to the former.” (p. 704.) The trial court heard much testimony by knowledgeable persons respecting custody and its memorandum reveals careful consideration of the issue. The weight of that evidence, including the testimony of some witnesses called by David, was that Sandra, despite her indiscretions, had devoted much time and attention to the children and had provided them with good care. It is true that one psychologist recommended David be given the boy’s custody, this based principally on psychological tests given to the boy and upon his expressed preference. The trial court was not bound to base its decision upon this testimony. It did consider this evidence. This expert had no factual background on the two parents nor had he made any testing of them. Another psychologist recommended that custody of the daughter be granted Sandra. The trial court expressed concern that divided custody would add to the emotional instability of the children resulting from the breakup of their home. Award of custody of the children in David would have resulted in his sister, who was in ill health, and his seventy-seven year old mother having the principal daily responsibility for looking after the children. The trial court made no finding of unfitness on the part of Sandra. It specifically found the best interests of the children would be served by awarding her their custody. It clearly appears religious beliefs were not a factor in the findings made. Everything considered, we cannot say the trial court abused sound discretion in this respect. Finally, David urges that in view of the support money and other expense ordered to be paid on behalf of the chilren, the property division was unfair to him and constituted an abuse of judicial discretion. He had included charts in his brief which are designed to convey the impression that the result of the various awards will leave him virtually penniless. The trial court found David’s net worth was about $10,000 at the time of the marriage and that it was in excess of $175,000 at the time of the divorce hearing. He had been earning a substantial annual income in varying amounts, depending upon when cattle and grain were sold. There was some dispute as to valuations but the court had the benefit of the testimony of a court-appointed appraiser and it appears Sandra was awarded about one-third of the property. As indicated, no alimony was allowed. Each party was directed to pay his own attorney fees. The fact the parties were found to be in equal fault does not affect the division of property (K. S. A. 60-1606). In Clugston v. Clugston, 197 Kan. 180, 415 P. 2d 226, this court stated: “As indicated, we have no rule of law, statutory or otherwise, for determining what proportion of the property is alloted to the individual parties [Citation], nor is it the prerogative of this court to divide property between husband and wife. . . .” (p. 182.) In St. Clair v. St. Clair, 211 Kan. 468, 507 P. 2d 206, we stated: “Under K. S. A. 1972 Supp. 60-1610 (b) the trial court is directed to divide the property of the parties in a just and reasonable manner. Thus, the subject is largely entrusted to the discretion of the trial court. . . .” (pp. 498-499.) In Stayton v. Stayton, 211 Kan. 560, 506 P. 2d 1172, we defined abuse of discretion in the following: “Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men 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. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” (p. 562.) We are unable to conclude that the awards made would have the effect of impoverishing David as contended. He is left with substantial property of a type wherein he has demonstrated ability to produce substantial income. The evidence reveals Sandra did her part as a homemaker while the property was being accumulated. She also had driven farm vehicles at times during harvest seasons. We cannot declare abuse of discretion in the award of property. The judgment is affirmed. APPROVED BY THE COURT. Fatzer, C. J., not participating.	[ -112, 108, -80, 109, 14, 66, -22, 88, 90, -81, -9, 83, -51, -37, 1, 105, 18, 13, 64, 104, -45, -78, 23, -64, -14, -5, -71, -52, -79, 93, -76, 119, 76, 34, -118, 85, 66, -118, -61, 20, -124, 6, -23, -28, -40, 70, -74, 107, -46, 15, 21, -98, -13, 109, 60, -34, 104, 46, 91, 125, -48, -72, 11, 23, 125, 26, -109, 6, -98, 5, 88, 111, -100, 49, 40, -24, 115, -122, -106, 116, 83, -101, 13, 100, 98, 3, -100, -52, -8, -120, 78, 86, 61, -90, -80, 72, 33, 101, -65, -107, 100, 85, 43, -2, 109, 15, 61, -28, 0, -49, -106, -101, 77, 48, -102, -120, -29, -23, 33, 113, -53, -30, 92, -25, 122, -111, -102, -78 ]
The opinion of the court was delivered by Owsley, J.: Defendant Malcolm Greene appeals from conviction of aggravated robbery (K. S. A. 1970 Supp. 21-3427, now K. S. A. 1973 Supp. 21-3427) and aggravated battery of a law enforcement officer (K. S. A. 1970 Supp. 21-3415, now K. S. A. 1973 Supp. 21-3415). On December 26, 1970, at 9:00 p. m., two black males walked into the Taco Kid restaurant at 2085 East Central in Wichita and ordered food. One of them pulled out a revolver and demanded money from John S. Dwyer, an employee. They were given more than one hundred dollars in a paper sack and they left the restaurant. Police Officer Herbert Kite observed the two black males in the Taco Kid and, being suspicious, stationed his patrol car one-half block north of tifie restaurant in an alley. He observed the two leave the restaurant. When they saw him they began running. He stopped them to question the contents of the sack and one of them shot him in the abdomen and chest. Officer Kite later identified his assailant from pictures as defendant Greene, and his companion as Arthur Rimmer, Jr. Complaints were filed against defendant on January 11, 1971, charging aggravated robbery and aggravated battery of a law enforcement officer. The defendant is a resident of Kansas City, Missouri, and he was arrested there on January 12, 1971, following a high-speed car chase and an attempted escape on foot. He was booked by Kansas City, Missouri, authorities for failure to yield to emergency vehicles and carrying a concealed weapon. Pie was questioned about his whereabouts December 22, 1970, and he admitted he had been in Wichita on that date. He waived extradition. On appeal, defendant contends he was improperly denied the right to determine whether probable cause existed for the issuance of the complaint and warrant by the prefiminary judge, Daniel Dwyer, and was improperly denied such a hearing at the only time said hearing was relevant; i. e., at the prefiminary stage of the case. The complaint as reproduced in the record was sufficient on its face, sworn to positively under oath before Magistrate Dwyer. When the crimes are charged substantially in the language of the statute, as these were, the requirements of the Fourth Amendment to the United States Constitution (Kans. Const. Bill of Rights, § 15), that no warrant shall be issued but on probable cause supported by oath or affirmation, are satisfied. (State v. Addington, 205 Kan. 640, 472 P. 2d 225; Holton v. Bimrod, 61 Kan. 13, 58 Pac. 558.) We find no abuse of discretion in the courts denial of a hearing on probable cause. The defendant next challenges his conviction on ground the prefiminary hearing magistrate refused to disqualify himself because of his kinship to one of the complaining witnesses. Magistrate Dwyer and John S. Dwyer, the robbed Taco Kid employee, are second cousins. Defendant contends the setting of bond at $100,000 was unreasonable and proves Magistrate Dwyers bias due to his kinship to the robbery victim. He moved at the preHminary hearing to have Magistrate Dwyer disqualify himself and contends denial of this motion was prejudicial error. Absent circumstances which of themselves would tend to cast doubt as to the fairness of whatever judgment might be pronounced, the question of bias or prejudice on the part of a court rests largely within the conscience of the court itself. (Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846.) We conclude the circumstances disclosed in this record do not justify a charge of bias or prejudice. It is interesting to note that the Rules Relating to Judicial Conduct, adopted January 1, 1974, require disqualification based upon kinship if counsel, party, or material witness in a proceeding is within the third degree of relationship calculated according to the civil law system. (Kansas Supreme Court Rules, Rules Relating to Judicial Conduct, Canon 3 C, 213 Kan. ix.) A second cousin is not within the proscribed degree of relationship. We find the magistrate did not err in refusing to disqualify himself. The defendant next contends he has been prejudiced at trial and on appeal by the lack of a transcript of his preliminary hearing. He requested a transcript of the preliminary hearing be furnished him at state expense and this request was granted. Defendant, however, was then forced by circumstances to choose between a speedy trial and a transcript since the reporter could not have the transcript ready by the trial date. Defendant was unwilling to delay trial and so continued to trial without the transcript. The record shows the defendant, in effect, waived his right to a transcript by failing to move for a continuance. The defendant was subsequently informed the transcript of the preliminary hearing would not be available for either trial or appeal because the reporter was not certified at the time the preliminary hearing was held. He contends he was denied equal protection and was prejudiced in preparing for trial and on appeal by lack of the transcript. He cites Roberts v. LaVallee, 389 U. S. 40, 19 L. Ed. 2d 41, 88 S. Ct. 194, and Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891, 76 S. Ct. 585, for the proposition that it is a denial of equal protection under the Constitution if the indigent defendant is denied a free tanscript and the quality of his defense made to depend upon his financial status. We agree with these statements. The elusive transcript, however, was not denied because of lack of funds. It was merely unavailable. Defendant was represented by the same court-appointed counsel at both pre liminary hearing and trial. .There is no indication the court reporter, even though not certified, could not have read her notes in court for the purpose of impeaching identifying witnesses. (State v. Kelley, 209 Kan. 699, 498 P. 2d 87; State v. Julian, 212 Kan. 169, 509 P. 2d 1123.) The defendant contends, but fails to show, how he has been handicapped on appeal by lack of the transcript. The record before us has led to our previously set forth conclusions that the magistrate did not abuse his discretionary power in denying a hearing on probable cause to issue the warrant or in refusing to disqualify himself. We have reached these conclusions by accepting as true all statements, claims, and arguments of defendant as to what transpired at the preliminary hearing. We fail to see, and defendant does not explain, how a transcript could tell more. The defendant next contends he was erroneously denied discovery of statements of identifying witnesses in prosecutor’s file to use in lieu of the transcript of the preliminary hearing. It appears from the record that the motion either was not filed, or, if filed, was never pressed by defendant, and we find no merit to defendant’s contention the trial court erroneously denied him discovery. (State v. Scott, 210 Kan. 426, 502 P. 2d 753.) The defendant contends the trial court erred in finding the statements made by him to Kansas City Police Detective Smith were voluntary and admissible in rebuttal to his alibi defense. The record shows the trial court conducted a Jackson v. Denno hearing outside the presence of the jury to determine voluntariness. Detective Smith was questioned as to the circumstances under which the defendant was interviewed. He stated the defendant read the Miranda-type warnings printed on the interrogation form and signed a waiver. Defendant contends a notation by Detective Smith at the top of the form, that defendant “refused to make a statement”, supercedes and nullifies his signing of the waiver; and all statements made to Detective Smith were involuntary and therefore inadmissible. The form is not reproduced in the record. The court, after hearing Detective Smith’s explanation, interpreted the notation to mean that the defendant would not confess any part in the Wichita robbery and shooting. Defendant’s other statements as to his activities during that time period were held voluntarily made without coercion and admissible for the purpose of rebutting his alibi. The defendant further contended during the hearing that the Miranda warnings on the interrogation form were insufficient because they did not contain the provision that all statements made by a suspect during interrogation will be used against him. The court held the word may, which was used on the interrogation form, is sufficient warning; and we affirm this after careful reading of the Miranda requirements. (Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974.) The testimony of Detective Smith was introduced in rebuttal to defendant’s alibi evidence which makes the question of voluntariness immaterial. An accused’s prior inconsistent statements, inadmissible in prosecution’s case in chief pursuant to Miranda requirements, can properly be used on rebuttal to impeach accused’s credibility. (Harris v. New York, 401 U. S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643.) The defendant’s final point on appeal contends the trial court erred in failing to instruct the jury as to the limited purpose for which evidence of other crimes or civil wrongs could be considered under K. S. A. 60-455. The record shows evidence of defendant’s past wrongdoing was first introduced by defendant himself on direct examination. He admitted he had been convicted of grand larceny, that a pistol was taken from his car at the time he was arrested, and that he was on parole at the time of trial. Detective Smith, in his rebuttal testimony, testified defendant had been booked in the Kansas City, Missouri, jail at the time he was interviewed, but did not state the nature of the charge. K. S. A. 60-455 attempts to protect defendants from evidence of past crimes introduced by the prosecution. The defendant’s own admissions on direct examination waived the protection of that statute. (State v. Scott, supra; State v. Patchett, 203 Kan. 642, 455 P. 2d 580.) We see nothing wrong with the trial court’s giving a proper limiting instruction on evidence of past crimes, even though the evidence of such crimes was first introduced by the defendant. Before failure to give such a limiting instruction can be considered as reversible error, however, it must be shown that defendant’s rights were prejudiced to the extent a fair trial was not had. A search of the record before us fails to disclose the evidence of past crimes was used by the state in any manner prohibited by K. S. A. 60-455; therefore the trial court’s failure to- instruct was not reversible error. We have carefully examined all the contentions raised on appeal and find no reversible error is shown. The judgment is affirmed.	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The opinion of the court was delivered by Kaul, J.: This is a subrogation action to recover the value of a truck destroyed by fire while in defendant’s garage for repairs. Plaintiff had an insurance policy covering the truck which was owned by Borg-Warner Corporation. Under the terms of the policy plaintiff paid the owner of the truck and thereafter instituted this action against defendant under its rights to subrogation. The petition disclosed the fire occurred on December 19, 1970. The action was commenced two years and four months thereafter, on April 30, 1973. In response to plaintiff’s petition, defendant filed a motion for summary judgment alleging the action was barred by the applica ble statute of limitations; namely, K. S. A. 1973 Supp. 60-513 (2). The trial oourt sustained defendant’s motion and this appeal ensued. The sole question presented is whether plaintiff’s petition alleges an action grounded in contract and governed by the limitation (3 years) prescribed in K. S. A. 60-512 (1), as claimed by plaintiff, or whether the action alleged sounds in tort and, thus, is subject to the limitation of two years under 60-513 (2), as claimed by defendant and held by the trial court. The record before us consists only of plaintiff’s petition and defendant’s motion for summary judgment; thus, our review is limited to consideration of the allegations of the petition. In such circumstances defendant’s motion is tantamount to a motion to dismiss under K. S. A. 1973 Supp. 60-212 (b) (6) and may be sustained only when the allegations of the petition clearly demonstrate plaintiff does not have a claim for relief (Keith v. Schiefenstockham Insurance Agency, Inc., 209 Kan. 537, 498 P. 2d 265). Concerning a motion for summary judgment it is well-established that in consideration thereof, the movant’s adversary is entitled to the benefit of all reasonable inferences that may be drawn from the facts under consideration. (Fairlawn Plaza Development, Inc., v. Fleming Co., Inc., 210 Kan. 459, 502 P. 2d 663; and Rothwell v. Transmeier, 206 Kan. 199, 477 P. 2d 960.) In Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693, we held that where a defendant pleads a statute of limitation and moves for summary judgment and it appears that the action is barred by the appropriate statute and there is no genuine issue as to any material fact in connection with such statute, then the motion should be granted. Turning to the petition in the instant case, it alleges a contract of bailment existed between defendant and Borg-Wamer Corporation whereby defendant was a bailee for repair of the truck; that defendant has failed on demand to redeliver the truck and has failed and refused to pay Borg-Wamer the value of the truck; and that by reason thereof defendant has breached the bailment contract. Defendant maintains plaintiff merely seeks to avoid being barred from suit by claiming its cause is based upon an implied contract and casting its petition in the form of an action for breach of contract in order to come within the three-year limitation of 60-512 (1). Defendant says that plaintiff has sought to change the essential character of the action from one of tort to one of contract thereby extending the limiting statute one year, but defendant asserts the nature of a cause of action is to be determined from the facts alleged rather than by what a pleader arbitrarily denominates it citing Lungstrum v. State Highway Commission, 177 Kan. 57, 276 P. 2d 346. In his brief defendant admits the law of bailments had its origins in the law of contract, but he says the Kansas cases, with the exception of Jay-Ox, Inc., v. Square Deal Junk Co., Inc., 208 Kan. 856, 494 P. 2d 1103, have been brought and tried upon tort concepts. We agree with defendant that with the exception of Jay-Ox and the case of Geis v. Mathes, 128 Kan. 753, 280 Pac. 759, the Kansas cases involving bailment have been generally based in tort. However, defendant cites no case in which we have held a bailor to be foreclosed from seeking his remedy in contract. Plaintiff takes the position that a bailor has a choice of remedies to recover for his bailee’s breach of contract and violation of duties implicit in the relation between the parties. Plaintiff says his position is confirmed by our opinion in Jay-Ox, Inc., v. Square Deal Junk Co., Inc., supra, and that the decision therein controls the disposition of the instant appeal. The issue in the instant appeal must be determined upon the allegations of plaintiff’s petition, the gist of which are: a bailment contract existed between the parties, it was breached by defendant, and that by reason of such breach plaintiff was damaged in the amount of $2,629.44, the value of the truck. Obviously, plaintiff has cast its petition in contract. In the Jay-Ox case we considered a similar dispute concerning the applicable statute of limitations in a bailment case. The action was for a money judgment for steel cylinders which the bailee allegedly failed to return to. the bailor. There was no written contract of bailment. However, the case, unlike that at bar, was fully tried and the evidence adduced included a written invoice which accompanied delivery of the steel tanks, to bailee. The invoice provided that bailee, upon acceptance thereof, agreed to certain obligations imposed therein. We held the action was one sounding in contract and was timely filed. This statement appeal's in the opinion: “Under some circumstances a bailor may have an election of remedies to pursue for conversion of the property; he may have an action in tort based upon the wrongful act of conversion, or he may proceed in contract for failure to redeliver the property (8 Am. Jur. 2d, Bailments, §289).” (p. 858.) The applicable general rule is more fully stated in 8 Am. Jur. 2d, Bailments, § 281, p. 1168: “. . . A bailment is a contractual relation and assumpsit is essentially a proper legal form of action between the bailor and bailee in matters concerning the bailment or for breach of the bailment contract, whether the breach occurred through failure of the bailee to pay the proceeds received from an unauthorized disposition of the property or through the bailee’s negligent failure to perform his duty of care, whereby the property was lost or injured. Actions in tort or sounding in tort may also be appropriate when the bailee’s violation of a duty or obligation imposed upon him by the bailment is not only a breach of the bailment contract, but also a tort. The bailor, as a general rule, may elect to affirm the contract and, waiving the tort, bring his action ex contractu, or he may abandon the contract and proceed against the bailee in an action ex delicto. . . .” (p. 1169.) To the same effect we fiad the rule enunciated in 8 C. J. S., Bailments, §44 (b), p. 493: A choice of remedies ordinarily is available to a bailor for his bailee’s breach of contract and violation of duties implicit in the relation between the parties.” See, also, cases collected in 57 A. L. R. 2d Anno., Limitations-Bailed Property, p. 1044. Unlike the situation in Jay-Ox, where the case had been fully tried and the arrangements between the parties established by the evidence, we have only plaintiff’s petition before us in the instant case. Concerning the construction to be given a pleading, we find this pertinent statement appearing in Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986: “. • • In construing a pleading, it has often been held by this court that where doubt exists as to whether the action is based on tort or on quasi or implied contract, words appropriate to an action for tort will be disregarded and the petition will be interpreted as counting in contract. (Kipp v. Carlson, 148 Kan. 657, 661, 84 P. 2d 899; Dougherty v. Norlin [147 Kan. 565, 78 P. 2d 65], supra, p. 569; and cases cited. . . .” (p. 507.) We further note the rule generally adhered to that where there are two remedies for the enforcement of a right, the fact that one is barred by limitation does not bar the other. (51 Am. Jur. 2d, Limitation of Actions, Election of remedies; waiver of tort, § 106, p. 678; 53 C. J. S., Limitations of Actions, § 7, p. 926.) In a final effort to sustain his position defendant submits the proposition that in the case of the two statutes with which we are concerned, 60-512 (1) permitting an action on an implied contract within three years is general in nature, whereas 60-513 (2) allowing two years to bring an action for taking, detaining or injuring personal property, including actions for the specific recovery thereof is quite specific and must control. Defendant advances the well-known rule that where there is conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific legislation controls. (Cutrel v. Best, 169 Kan. 16, 217 P. 2d 270.) The rule is, of course, a well-recognized maxim to be applied where a conflict between statutes appears. The rule is inapplicable here for two reasons: First, we fail to discern any conflict between the statutes mentioned, one deals with actions upon contract the other with actions for the taking, detention or injury to personal property. Second, the language used in 60-512 (1): “The following actions shall be brought within three (3) years: (1) AH actions upon contracts, obligations or liabilities expressed or implied but not in writing. . . .” appears to be no less specific than that employed in 60-513 (2). The petition, which is all we have before us in the instant case, alleges a contract of bailment and the breach thereof. No relief is sought for the detention of or injury to property. True, specific terms of the contract, whether expressed or implied, are not alleged, but no point is made in this regard. We hold plaintiff-bailor has a choice of remedies and that his position states a cause of action sounding in contract. 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The opinion of the court was delivered by Fromme, J.: This action arose from a one car accident in the city of Lansing, Kansas, on August 19, 1968. The plaintiff, Judy Neilson, was a guest passenger in the automobile driven by her sister, Connie Gambrel. Claim was filed against the host driver on the basis of gross and wanton negligence. Claim was also filed against the owner of the automobile, William A. Gambrel, on the theory of “negligent entrustment”, knowingly permitting an unlicensed and incompetent person to drive the automobile. At the close of plaintiff’s evidence the trial court directed separate verdicts in favor of each defendant. The verdicts were entered in February, 1972. The appellant’s notice of appeal was filed in the district court in March, 1972. After some delay in the court below this appeal was docketed in April, 1973. These dates will become important in the course o£ this opinion. We will first examine the plaintiff-appellant’s contention with regard to her claim against the driver, Connie Gambrel. She contends that her evidence was sufficient to go to the jury on the question of willful and wanton negligenoe and the cotut erred in directing a verdict in favor of Connie Gambrel. The evidence introduced at the trial indicates that the host driver, Connie Gambrel, was 17 years of age and married to the co-defendant, William A. Gambrel. At the time of the accident she was an unlicensed operator and had been chiving her husband’s car for two and one-half months. On the day of the accident she drove to the Neilson home and picked up her 14 year old sister, Judy Neilson. They started on an errand for Connie but stopped at her home to pick up the mail. The mail included a mail order catalog. After getting the mail from the mail box they returned to the car, then proceeded on the errand. The plaintiff was sitting on the passenger’s side in the front seat looking at the catalog. The driver was also glancing at the catalog. The automobile was driven but a short distance thereafter when it collided with a utility pole located near the shoulder of the roadway. The automobile was traveling at a speed not in excess of 15 miles per hour. The plaintiff looked up from the catalog just as the automobile came in contact with the pole. Plaintiff testified her sister was looking at the catalog and driving at the same time. We have carefully examined the evidence in the record and find no evidence from which a jury could find gross and wanton conduct under the guidelines set forth in Saunders v. Shaver, 190 Kan. 699, 701, 378 P. 2d 70; Mann v. Good, 202 Kan. 631, 634, 451 P. 2d 233; and Pickens v. Maxwell, 203 Kan. 559, 456 P. 2d 4. 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. The trial court did not err in directing a verdict on the claim against Connie Gambrel. There was no evidence of the realization by the driver of the imminence of danger or of reckless disregard. Under Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362, the Kansas guest statute (K. S. A. 8-122b) was declared unconstitutional by this court on January 26, 1974. Proof of gross and wanton negligence is no longer required. In Vaughn v. Murray, 214 Kan. 456, 521 P. 2d 262, this day decided, the rule limiting the retroactive effect to be given the law declared in Henry v. Bauder, supra, was set forth 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 causes 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.” Applying this rule to the facts of the present case we find the directed verdict appealed from falls within the exception. The verdict was entered in the district court prior to January 26, 1974, and is free of reversible error under the law then existing. Therefore the law as declared in Henry v. Bauder, supra, does not apply and the claim of the plaintiff, Judy Neilson, against her host driver, Connie Gambrel, has been finally adjudicated. We turn next to the claim against William A. Gambrel which was based upon “negligent entrustment”. The plaintiff-appellant contends the trial court erred in directing a verdict in favor of the defendant William A. Gambrel, owner of the automobile. The trial court held “an owner of an automobile is not liable unless the driver, if the driver is over the age of sixteen commits an act of gross and wanton negligence.” The court concluded “that under the Guest Statute in Kansas that the owner would not be liable to a passenger unless the driver himself or herself was liable, and in this case since the driver isn’t liable I feel that it follows as a matter of law that the owner of the vehicle is not liable.” We believe the trial court was in error in this regard. Under the case of In re Estate of Bisoni, 171 Kan. 631, 237 P. 2d 404, it is held: “Under G. S. 1949, 8-222 the owner of a motor vehicle who permits his minor son under the age of sixteen years to drive the vehicle upon a highway is liable for any damages caused by the negligence of such minor in driving the vehicle irrespective of whether the son is liable under G. S. 1949, 8-122b.” (Syl. ¶1.) Although in the present case the driver was over the age of sixteen and K. S. A. 8-222 (formerly G. S. 1949, 8-222) does not apply the thrust of the holding in Bisoni is that the guest statute does not affect the liability of an owner if the owner is not driving the automobile. This is clearly explained in Greenwood v. Gardner, 189 Kan. 68, 366 P. 2d 780, where the ten year old driver sued his grandfather who owned and was riding in the automobile. In Greenwood, this court, referring to the guest statute, says: “. . . This statute was construed in the case of In re Estate of Bisoni, 171 Kan. 631, 635, 237 P. 2d 404, and what is said there is controlling here. Suffice it to say that plaintiff was the operator at the time of the accident and defendant was the passenger; the plaintiff was in physical control of the car and defendant was the one who was being transported. Therefore, the guest statute has no application under the facts in this case.” (p. 72.) The holding in Greenwood was further discussed in a different setting in Smithson, Executor v. Dunham, 201 Kan. 455, 441 P. 2d 823, but the holding was approved and applied. The theory upon which plaintiff sought recovery against the owner of the car in this case was “negligent entrustment”. This theory of liability is well recognized in Kansas. See Priestly v. Skourup, 142 Kan. 127, 45 P. 2d 852; Richardson v. Erwin, 174 Kan. 314, 255 P. 2d 641; and Fogo, Administratrix v. Steele, 180 Kan. 326, 304 P. 2d 451. Such a claim is based upon knowingly entrusting an automobile to an incompetent or habitually careless driver. K. S. A. 8-264 provides that no person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not licensed. Defendant was an unlicensed driver in the present case. Although such an action is dependent upon the establishment of negligence on the part of the person to whom the automobile is entrusted (Richardson v. Erwin, supra.) it does not depend upon proof of gross and wanton negligence. (In re Estate of Bisoni, supra.) In the recent case of Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P. 2d 737, it is said: “. . . The rationale of the ‘negligent entrustment’ cases is not founded upon the negligence of the driver of the automobile but upon the primary negligence of the entruster in supplying the chattel, an automobile, to an incompetent and reckless driver. . . .” (p. 151.) It is of course true under Richardson that the secondary negligence or the incompetence of the driver must be established. So, clearly in this case, the claim of Judy Neilson against the owner and entruster of the automobile did not depend upon proof of gross and wanton negligence of the driver. The directed verdict against the plaintiff and in favor of William A. Gambrel was in error and is set aside. The former guest statute had no application to this claim and no question as to the retroactivity of the law declared in Henry v. Bauder, supra, is before us. The claim did not come under the guest statute. Accordingly the order directing a verdict in favor of Connie Gambrel is affirmed, the order directing a verdict in favor of William A. Gambrel is reversed and the claim based upon “negligent entrustment” is remanded for trial in accordance with the opinions expressed herein.	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The opinion of the court was delivered by Prager, J.: This is an action seeking partial cancellation of an oil and gas lease and for release of 40 acres from the leasehold interest. The basis of the action is the alleged failure of the lessee to carry out its obligation to comply with the implied covenant of further development. The essential facts are not in dispute and are as follows: On May 31, 1955, the plaintiffs-appellees, P. M. Sanders and Julia Sanders, his wife, executed an oil and gas lease to the defendants-appellants, E. L. Birmingham, Jr., W. N. Bartlett and Richard Hindery, a partnership, doing business as Birmingham-Bartlett Drilling Company, and Carl S. Rohwer, covering the Southwest Quarter of Section 35, Township 13 South, Range 17 West, in Ellis county. In this opinion we will refer to the plaintiffsappellees, as Sanders or the lessor. We will refer to the defendants-appellants as Birmingham-Bartlett or the lessee. During the first half of 1956 the lessee drilled four producing oil wells on the east 40 acres of the quarter section. On December 15, 1959, Robert C. Allan, as attorney for the lessor, wrote a letter to the lessee which in substance demanded that the lessee take immediate steps to further develop the lease. On December 16, 1959, Lester L. Morris, as attorney for the lessee, wrote to Allan a letter which stated in pertinent part as follows: “Birmingham-Bartlett Drilling Company has consulted me with reference to your letter of December 15, 1959, concerning your demand for release of the above mentioned lease as pertains to the West 120 acres of the above described property. “I have gone over all the facts concerning this lease, and particularly with reference to the drilling program and location of the wells on the above lease, as well as the wells in the surrounding area. From the facts available I am of the opinion that Birmingham-Bartlett Drilling Company has reasonably developed the property, and that there is no implied obligation upon them to drill any additional wells at this time. However, rather than to have litigation over the matter, I would recommend to Birmingham-Bartlett Drilling Company, that they give thought to releasing the W/2 SW/4 of Sec. 35-13S-17W., Ellis County, Kansas, but I could not recommend that they release the W/2 E/2 SW/4 of said section 35. “You might take the matter up with your client and if he is willing to consider my proposal I will then take the matter up with Birmingham-Bartlett and try to work out an arrangement whereby the lease on the W/2 SW/4 of said Sec. 35 can be released of record. I, of course, would not want to be faced with a law suit on the W/2 E/2 SE/4 of Sec. 35; if we are going to have a law suit on that, then I think client should stand by its guns on the entire quarter section.” (Emphasis supplied.) Allan wrote in reply a letter to Morris which stated in part as follows: “I have gone over this matter again with my client and he is agreeable to avoiding litigation If your client will release only the West Half of this Quarter Section. “You suggested in your letter that you would recommend the same to your client and we wish that you would go ahead and discuss it with them and contact us when any decision has been reached.” (Emphasis supplied.) On January 11, 1980, Morris wrote to Allan enclosing a release signed by the lessee releasing the west 80 acres of the quarter section covered by the oil and gas lease. This letter is stated as follows: “I acknowledge receipt of your letter of January 7, 1960 in which you state that your client would be willing to accept a release of the above mentioned lease as pertains to the W/2 SW/4 of Sec. 35-13S-17W., Ellis County, Kansas to avoid litigation. I have secured the release which was executed by all of the partners of Birmingham-Bartlett Drilling Co. and Chas. H. Keevert, as we understand Chas. H. Keevert had an interest in the lease. “If this is satisfactory go ahead and record it and then send me statement for the amount of recording fee and I will see that you are reimbursed.” The lessor thereupon recorded the release of the west 80 acres of the quarter section. Approximately 12 years later on June 30, 1972, the lessor filed a petition in this action for partial cancellation of the lease as it pertained to the west 40 acres of the east half of the quarter section and for release of that 40 acres from the leasehold interest. The basis of the lessors claim was the failure of the lessee to develop fully the property in violation of the implied covenant of further development. The lessee filed its answer in which it denied that it had failed to develop fully the leasehold interest in violation of any implied covenant in the lease and, by way of affirmative defense, alleged an accord and satisfaction relying upon the correspondence between the lessor’s attorney, Robert C. Allan, and the lessee’s attorney, Lester L. Morris, which is described above. On February 21, 1973, the lessee filed a motion for summary judgment based on the defense of accord and satisfaction. This motion was overruled by the trial court just before commencement of the trial. With the pleadings in this posture the parties proceeded to trial before the court on April 23, 1973. The parties filed a joint stipulation as follows: “(1) Southwest Quarter of See. 35, 13 17 Ellis County, Kansas, is owned by P. M. Sanders and it is so stipulated. “(2) It is stipulated that P. M. Sanders on May 31, 1955 executed an oil and gas lease to E. L. Birmingham, Jr., et al. covering above described property reflected as plaintiff’s exhibit 1. “(3) It is stipulated that there are four producing oil wells in center of regular ten acre location located in E/2 of E/2 of SW/4. These wells were drilled and completed on following dates: Sanders #1 — Jan. 18, 1956 Sanders #2 — Feb. , 1956 Sanders #3 — Feb. , 1956 Sanders #4 — May 18, 1956 “(4) It is stipulated that no dry holes were drilled by defendants on SW/4. “(5) It is stipulated defendants exhibit 1, 2 and three reflect location of all producing wells and dry holes in area shown on exhibits including Sanders SW/4 and shows elevation top of Lansing and Arbuckle producing formation. “(6) It is stipulated that correspondence attached to defendants Answer reflect correspondence between Law Firms involved. “(7) It is stipulated that W/2 of SW/4 was released as indicated by correspondence by release recorded Jan. 8, 1960 in Book 185 page 17 in Register of Deeds Ellis Co., Ks.” Attached to this stipulation were three maps which showed all producing wells, dry holes and the elevation tops of the Lansing and Arbuckle producing formations in section 35 and in the half sections abutting section 35 on all four sides. These maps showed the four producing wells on the east 40 acres of the southwest quarter of section 35, six producing wells in the west half of the southeast quarter of section 35, and nine producing wells in the half section directly to the south of section 35. Tire lessor then called two witnesses in support of its petition. P. M. Sanders, a lessor, testified in substance that in the fall of 1959 he had authorized his son Ed to exert pressure upon die lessee to either do additional drilling or release the undeveloped land. Mr. Sanders, age 80, had recently sustained an illness which caused him to be quite forgetful and he had no recollection of having had personal contact with the attorney, Mr. Allan. He did recall that tire west 80 acres of the southwest quarter of section 35 were released by the lessee and that such release was probably the end result of his son’s efforts. He denied any agreement as to the 40 acres involved in this case. The only other witness called by the lessor was another son, Donald L. Sanders. The entire testimony of Donald L. Sanders, as set forth in the record on appeal was as follows: “Direct Examination of Donald L. Sanders by Simon Roth, Jr, “My name is Donald L. Sanders and I work for O’Neil Tank Company. I am also an electrician. My duties for O’Neil Tank Company consist of designing, building and the installing the cost automation for the company in the oil patch. My father is P. M. Sanders . . . “Q. Have you contacted and talked to people regarding development of this acreage? “A. Yes, sir. “Q. And discussed with them the possibility of further developing it? “A. Yes . . . “Q. Don, would you yourself be interested, knowing what you know, in developing further this acreage? “Mr. Brock: Objection your Honor. I don’t believe the man has qualified himself either as an expert through geology or petroleum engineering, nor as a practical operator with experience of exploring for additional oil and gas. “The Court: Overruled. You may answer yes or not. “A. Yes. “Q. And what are you basing this on, Don? "A. Well due to the location and also I think— “Mr. Brock: Objection, your Honor. He is now trying to give an opinion on the location. “The Court: The question does not go to his qualifications as an expert. The objection is overruled. “Q. You may answer. "A. Well I believe you are well aware that Birmingham’s buy location. This is why they have acquired the map that they have there. “Q. Based on what information, Don? Answer the question. “A. Yes I would. “Q. And is there anything else which would lead you to this opinion and your willingness to develop this? . . . “A. Well basically they tell us there is a need for oil. “Mr. Brock. Objection, immaterial. “The Court: Sustained. “Q. What other information, Don, do you have available to you that would— “A. Well, I have people that are interested— “Mr. Brock: Objection, your Honor, that is hearsay. “The Court: Overruled. “A. Like I say, this one person is deceased now, Leo Dreiling, Jr., which was Mr. Dreiling’s manager at the time, and his decisions held. And the next person is Melvin Sehartz. He is a lease broker in Great Bend. He leases continually every day. “Mr. Brock: Your Honor, I hate to be objecting all the time, but he is testifying that these people are interested, and that is hearsay. There is no way to cross examine on that. “The Court. It may be foundation for later testimony. Overruled. “A. And those are the only people I contacted so far. . .” The lessor called no other witnesses and rested its case. The lessee immediately moved for an involuntary dismissal for the reason that the evidence was insufficient to support a judgment in favor of the lessor. The trial court overruled the motion. The lessee then renewed its motion for involuntary dismissal which motion was overruled by the court. The lessee then announced that it was its desire to stand on the motion and it did not desire to introduce any evidence. The lessee did not offer any evidence in opposition to the evidence presented by the lessor. Thereupon the trial court entered judgment in favor of the lessor as plaintiff, declaring that unless the lessee instituted the drilling of an oil and gas well within 90 days on the 40 acres in dispute, the oü and gas lease would be declared released and canceled insofar as such lease covers that 40 acres. The lessee has appealed to this court. The first point raised on this appeal is that the trial court erred in overruling the lessee’s motion for summary judgment because the evidence clearly established that the parties had previously compromised and settled the lessor’s claim and that the lessor ratified the settlement agreement. Stated in another way the issue is whether or not the evidence establishes an accord and satisfaction in 1960 which as a matter of law bars this action filed in 1972. The lessee takes the position that the action is barred because the undisputed correspondence between the attorneys of the parties shows an agreement to compromise and settle the lessor’s claim; that a release of the west 80 acres of the quarter section was executed by the lessee in reliance upon the agreement and understanding that there was to be no litigation between the parties; and that the settlement agreement as contained in the correspondence plus the executed release constituted a complete accord and satisfaction. The lessor contends that the correspondence between the parties’ attorneys does not establish a complete settlement agreement but that only the west 80 acres of the quarter section were involved; that in 1960 there was no meeting of the minds as to the remaining 40 acres; that there was no written binding release prepared and that half a sentence in one letter is insufficient to constitute an accord and satisfaction. We have held that to constitute an accord and satisfaction there must be an offer in full satisfaction for the obligation accompanied by such acts and declarations or under such circumstances that the party to whom the offer is made is bound to understand that if he accepts it, it is in full satisfaction of and discharges the original obligation. (Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875; Amino Brothers Co. Inc. v. Twin Caney Watershed District, 206 Kan. 68, 476 P. 2d 228.) To have an accord and satisfaction there must be a complete meeting of tire minds that the claim of the party has been fully satisfied and discharged. We have concluded on the basis of the evidentiary record before us that the trial court did not err in its finding that the evidence did not establish an accord and satisfaction in 1960 which as a matter of law barred the present action in 1972. In reaching this conclusion we have noted particularly the letter of Lester L. Morris dated December 16, 1959, quoted above, which states that there is no implied obli gation upon the lessee to drill any additional wells at this time. It seems to us that the agreement of the parties must be interpreted in the light of the situation as it existed in 1960 and that it has not been clearly shown that the lessor intended forever thereafter to release the lessee of its duty to further develop the leasehold at all times in the future. The implied covenant to further develop the lease is a continuing obligation during the term of the lease. The obligation of the lessee thereunder must be judged in the light of the circumstances as they might exist at various times during the term of the lease. We believe that in view of this continuing obligation the lessor had the right to show a change in circumstances between 1960 and 1972 which would justify the enforcement of the lessee’s implied covenant to further develop the lease. It should also be noted that the burden of proof on the defense of accord and satisfaction was upon the lessee. We hold that although there may have been an accord and satisfaction as to further development of the lease in 1960, such agreement did not as a matter of law bar this action in 1972 to enforce the lessee’s implied covenant to further develop the lease at that time. The lessee’s second point on this appeal is that the trial court erred in overruling its motion for involuntary dismissal because there was no substantial evidence to establish that a knowledgeable and prudent operator would have further developed the leased acreage. Before examining the evidence presented in the record before us we should consider the principles of law pertaining to the duty of a lessee under an oil and gas lease to further develop the leased property and the relative rights and responsibilities of the parties in litigation involving the implied covenant to further develop. The principles pertaining to this subject are set forth fully in Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P. 2d 95; Temple v. Continental Oil Co., 182 Kan. 213, 320 P. 2d 1039; Renner v. Monsanto Chemical Co., 187 Kan. 158, 354 P. 2d 326; and Stamper v. Jones, 188 Kan. 626, 364 P. 2d 972. These rules may be briefly summarized as follows: (1) In the absence of an express provision in the lease there is an implied covenant by the lessee that the tract will be prudently developed. (2) Neither the lessor nor the lessee is the sole judge of what constitutes prudent development of the tract. Whatever would be reasonably expected of operators of ordinary prudence, hav ing regard to the interests of both lessor and lessee, is what is required. (3) The burden of proof is upon the lessor to establish by substantial evidence that the covenant has been breached by the lessee. (4) The lessor must prove that the lessee has not acted with reasonable diligence under the facts and circumstances as they exist at the particular time. (5) In determining whether or not there has been prudent development under the lease there are various pertinent factors to be considered — all of the facts and circumstances which would affect the reasonableness of an ordinarily prudent operator’s position in connection with development of the particular tract involved. Some of the factors which have been suggested for consideration by the Kansas decisions are the following: The quantity of oil and gas capable of being produced from the premises as indicated by prior exploration and development; the local market and demand therefor; the extent and results of the operations, if any, on adjacent lands; the character of the natural reservoir — whether such as to permit the drainage of a large area by each well— and the usages of the business. Among the economic factors to be considered are the cost of drilling, equipment and operation of wells; cost of transportation, cost of storage, the prevailing price; general market conditions as influenced by supply and demand or by regulation of production through governmental agencies. (Fischer v. Magnolia Petroleum Co., supra, citing 2 Summers Oil and Gas, Perm. ed., pp. 377, 378.) In the various cases the emphasis has shifted from one factor to another depending on the particular factual circumstances in each case. With these principles in mind the issue presented in the second point is as follows: Does the record contain substantial evidence to justify the finding of the trial court that a knowledgeable and prudent operator would have further developed the leased acreage. We have defined “substantial evidence” as evidence which possesses something of substance and relevant consequence and which furnishes a substantial basis of fact from which the issues tendered can be reasonably resolved. (Delight Wholesale Co. v. City of Prairie Village, 208 Kan. 246, 491 P. 2d 910.) When the record in this case is carefully examined we find that the following facts have been established by the lessor: (1) Four producing oil wells were drilled by the lessee on 10-acre tracts located on the east 40 acres o£ the southeast quarter during January, February and May of 1956. (2) No further development on the leased acreage has occurred by action of the lessee for a period of 17 years. (3) No dry holes were drilled by the lessee on the southwest quarter including the 40 acres involved in this litigation. (4) The lessor had operators who were willing to further develop the 40 acres. (5) The maps introduced into evidence showed producing wells in the southeast quarter of section 35 and in the north half of the section immediately south of section 35. It is our judgment that considering this evidence with all reasonable inferences therefrom made in favor of the lessor such evidence does not constitute substantial evidence sufficient to justify the finding of the trial court that the lessee breached its obligation to further develop the leased property. There is no evidence whatsoever in the record that there was a reasonable expectation of obtaining production from the acreage in litigation or to show the quantity of oil which might reasonably be expected from such production. There was no evidence as to the reservoir characteristics of the area such as the producing formation, the thickness of pay, location of oil-water contact (if any), source of reservoir energy, production history, initial test potential of producing wells, or porosity, all of which were deemed necessary to be shown by this court in Temple v. Continental Oil Co., supra. Likewise there was no evidence of well pressure or permeability as was emphasized in Myers v. Shell Petroleum Corp., supra. The maps which were introduced into evidence show only well locations in the Arbuckle and Lansing formations. They do not show which of the producing wells are producing from the Arbuckle and which from the Lansing formations, nor the amount of oil production at the time of the trial. There was no evidence whatsoever to show whether or not the existing wells can eventually drain the lessor’s undeveloped acreage. There was no evidence whatsoever as to the economic factors involved in drilling, equipping or operating an additional well or whether any oil production would reasonably be expected to be profitable to the lessee. As we have pointed out above the burden of proof was upon the lessor to prove his case. It was not the burden of the lessee to bring forth evidence covering the various factors which have been held significant in our previous decisions. In our judgment there has been a failure of proof in this case since the lessor failed to introduce substantial evidence sufficient to show that a knowledgeable and prudent operator would have further developed the leased acreage under the circumstances. The findings and the judgment of the district court cannot be upheld on this appeal. On the record before us judgment must be entered in favor of the appellants as a matter of law. The judgment of the district court is reversed. 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Per Curiam: This action is to recover for a holdup burlary loss at a supermarket under a comprehensive crime protection policy for $15,000. Judgment was rendered for the plaintiffs for the full amount, but the trial court rejected the claim for attorney fees asserted under K. S. A. 40-256. The section permits the allowance of attorney fees, “including proceedings on appeal,” if it appears from the evidence that the company refused to pay the loss “without just cause or excuse.” Plaintiffs-appellants appeal from the order denying the allowance of attorney fees. The evidence shows that the appellants had two previous burglaries, without loss, and on November 13, 1969, a loss for armed robbery. Following the armed robbery loss, appellants’ former insurer declined to renew coverage after the expiration of the policy then in effect. In applying for a new policy with the appellee the local agent was apprised by the appellants of the armed robbery loss, but in making out the application, in the presence of one of the appellants, the agent omitted filling in the blanks calling for information with respect to prior losses. The insurance application was signed by appellant Whitaker and countersigned by the agent. Pertinent questions in the application are as follows: “8 (a) Assured has not sustained any loss or damage from any of the hazards for which coverage is requested at this or any other location during the last five years except: (if any, give year of loss, kind of loss and amount, point of entry and how fortified since loss? “(b) No company has cancelled or refused to issue a policy to cover any of the hazards for which coverage is requested during the last five years, except.” Failure to disclose the information called for by 8 (a), above quoted, provided the basis for appellee’s defenses. The question is in fact a direct positive statement that there were no prior losses and did not call for anything to be written in unless diere were losses to report. On its face, the application as to 8 (a) is a positive misrepresentation. Investigation by appellee, after the loss claim was received, revealed the fact of the prior burglaries and tire robbery loss. The appellee refused to pay. After proof of loss and before suit was filed appellee obtained a written statement from the local agent, but, as the trial court found, it did not indicate that the agent had been apprised of such facts at the time the policy was written. In its answer appellee pleaded misrepresentation by appellants, a logical defense as matters then stood. When the facts were known the company also submitted the defense of fraud and collusion betweeen the appellants and the local agent. The case progressed and was handled with dispatch. No discovery was had and it appears that none was necessary. Factual questions existing when the action was filed were resolved at pretrial and the case was submitted on stipulated facts, but obvious questions of law remained. These questions were thoroughly briefed and in due course judgment was rendered in favor of plaintiffs. The picture as presented in the trial court’s memorandum opinion and the entire record, which we have carefully reviewed, lead to the conclusion, as we said in Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 470 P. 2d 756: “. . . [T]hat reasonable men could not say the defendant’s denial of liability was patently without any reasonable foundation. . . .” (p. 565.) Accordingly we can see no basis for disturbing the trial court’s finding that appellee’s refusal to pay the claim was not without just cause or excuse. The judgment is affirmed.	[ -48, -20, -8, -67, -104, -32, 56, -8, 75, -127, 39, 83, -21, -30, 21, 63, -42, 25, 101, 112, -106, -89, 123, 2, -10, -65, 27, -59, -77, 95, 110, -108, 76, 32, -30, -43, 102, -118, -59, -104, 74, 6, -70, -27, -3, 97, -16, 105, -76, 7, 49, -99, 123, 32, 19, -62, 73, 44, 11, -67, -13, -15, -93, 5, 127, 20, -95, 22, -72, 71, -48, 11, -100, -79, 1, -56, 114, 54, -122, 52, 99, 25, -128, 106, 103, 48, 97, -25, -20, -84, 38, -8, 31, -122, -110, 112, 9, 39, -74, -99, 121, 4, 37, -4, -12, 92, 15, 40, 5, -98, -48, -77, -51, 100, -99, -117, -1, -73, -74, 113, -115, -30, 93, 87, 116, 55, 78, -96 ]
The opinion of the court was delivered by Fontron, J.: This is a habeas corpus proceeding. It is brought by the father of Anna Laura Anderson, bom May 25, 1966. Hie plaintiff, Mr. Anderson, seeks an order directing the defendant, Mrs. Anderson, to release Anna to him in compliance with the terms of a custody decree entered by a district court in Minnesota. The lawsuit has many of the unfortunate overtones so often present in disputes over custody arising between parents separated by divorce. Mr. and Mrs. Anderson made their home in Minneapolis, Minnesota. Marital problems developed during their marriage and Mrs. Anderson instituted divorce proceedings in the district court of Hennepin County, Minnesota. Her husband filed a counterclaim and the case was hotly contested. After a trial extending over a period of &A days, the Minnesota trial court on January 4, 1971, decreed, so far as material to this case, that the parties be divorced from each other on grounds of cruelty; that the father was a fit and proper person to have custody of Anna and it was Anna’s best interest that he be given her custody; that the mother have liberal visitation rights, including overnight visitations on alternate major holidays, on Anna’s alternate birthdays and up to four weeks during summer vacations, with Mr. Anderson footing the bill, in specified .•amounts, for Anna’s transportation expenses to her mother’s home, should Mrs. Anderson live at a distance. The court also made the following findings with respect to custody: “The defendant is a fit and proper person to have custody of Anna Laura Anderson and it is in the best interests of Anna that defendant have her custody for the reasons next set forth. “The plaintiff has given commendably good and loving care and attention to Anna in the past, but may not be able to do so hereafter (although she would try) without a good husband’s assistance because the plaintiff is emotionally unstable, she did not contest the custody of, and has not kept contact with, her first two children, she has used baby sitters extensively, she has been unduly severe towards her other child, Bobby, she has not been financially responsible, and she has demonstrated a propensity for having affairs with men which may adversely affect Anna.” In a memorandum prepared shortly after the custody decree was entered, the court added these further words on the subject: “This decison has been one of the most difficult for me to make in nearly 19 years as a judge. I deeply regret the need for taking custody of Anna from the plaintiff because I know this will cause her much grief. The plaintiff is basically a very personable, affectionate and likeable person, but she does have certain human frailties (and all human beings do have frailties of some type) referred to in the findings which are inherent in her nature and which have caused me to conclude that the best interests of the child require custody be given to the defendant.” Mrs. Anderson appealed from the decision of the Minnesota trial court and on May 19, 1972, the supreme court of that state in a per curiam opinion affirmed the judgment of the district court. In its opinion the supreme court stated: “We have examined the lengthy record in this case and conclude that the trial court was within the bounds of his discretion in awarding custody of the child to the father. The court has made a conscientious effort to determine >vhat is best for the welfare of the child involved and we are content to leave it there.” On or about August 1, 1972, Mrs. Anderson received permission from the Minnesota district court to bring Anna to Kansas for the four-week summer vacation. She brought the child to the home of her parents in Sedgwick County where, on August 24, 1972, before her visitation rights had expired, she filed an action in the district court of that county alleging a change of circumstances occurring after the Minnesota decree was entered, and praying that she be awarded custody. On the following day Mrs. Anderson moved for an order of temporary custody and on September 5, 1972, by which time visitation rights had expired, the Sedgwick district court issued an ex parte order giving custody of Anna to her mother pending trial or until further order. On September 13, 1972, Mr. Anderson filed a motion to dismiss the proceedings pending in the Sedgwick district court, setting up the Minnesota decree and alleging that Mrs. Anderson was in violation thereof; that she had committed a fraud upon the Minnesota court; that she was engaging in forum shopping; and that the exercise of jurisdiction by the Sedgwick district court would be improper. This motion was heard and overruled on September 15, 1972, and the temporary order of custody was continued in effect. The present action was commenced against Mrs. Anderson on October 18, 1972. It was filed in the district court of Rutler County, inasmuch as Anna and her mother had moved to El Dorado. Here after we shall refer to the contending parties either as plaintiff and defendant or, as heretofore, as Mr. Anderson and Mrs. Anderson. In his petition for a writ of habeas corpus Mr. Anderson set out the Minnesota custody order, together with the supreme court’s per curiam opinion affirming the same, and alleged that the defendant was violating the provisions of the Minnesota decree by-retaining Anna after her visitation rights had expired. Mrs. Anderson filed an answer, in which she set forth the order of the Sedgwick district court granting temporary custody to her. She alleged that since the Sedgwick court had obtained jurisdiction of the matter the case should be allowed to proceed to trial in Sedgwick County on tire merits and, further, that the plaintiff had other remedies which should be exhausted before a writ was issued. On October 26, 1972, Judge Page W. Benson conducted a hearing in the habeas action at which the plaintiff appeared by counsel and the defendant appeared personally and by counsel. At the conclusion of the hearing the trial court issued the writ. The following day Mrs. Anderson filed a motion for rehearing in which she stated that by inadvertence she had not introduced evidence concerning a change of circumstances occurring after the Minnesota order was entered. Judge Benson found that a rehearing should be granted and on November 10, 1972, proceeded to reconsider his previous decision. At this time the defendant requested the court to continue the habeas corpus proceeding until the issues were determined in the case before the Sedgwick district court or in tire alternative to permit her to introduce evidence of changed circumstances. The trial comt overruled both requests, following which the defendant proffered evidence to show a change of circumstances. Mrs. Anderson appealed from the adverse judgment entered against her by the Butler district court, and executed a supersedeas bond set by the court to stay execution pending her appeal. On March 14, 1973, the Sedgwick district court conducted another hearing in the action pending there. At this hearing the Sedgwick court found that it had jurisdiction; that the evidence showed a change of circumstances but that a full evidentiary hearing should be held after the appeal from the Butler County judgment was determined; and in the meantime the temporary custody of Anna should be confirmed in Mrs. Anderson. In granting Mr. Anderson’s petition for a writ, and in directing Mrs. Anderson to return Anna to the custody of her father, the Butler district court found that it had jurisdiction of the parties to determine the relief prayed for; that full faith and credit should be given to the judgment of the District Court of Hennepin County, Minnesota, as affirmed by the Supreme Court of that state; and that Mrs. Anderson should not be permitted to introduce evidence showing a change of circumstances since she had not entered the court with clean hands in accordance with the requirement mandated in Perrenoud v. Perrenoud, 206 Kan. 559, 480 P. 2d 749. The court based its finding of unclean hands on the following factors: (1) That Mrs. Anderson relied on the Minnesota decree when she obtained custody of Anna on a temporary basis in the summer of 1972; (2) that she elected to leave the jurisdiction of the Minnesota district court only when she exhausted her right of appeal and failed to obtain the relief she sought; (3) that she could easily have commenced proceedings for change of custody in Minnesota a month before commencing them in Kansas; (4) that commencing proceedings in Minnesota would have permitted the judge who heard the divorce action to determine whether there had been a change of circumstances; (5) that defendant has abided by the Minnesota decree only when it was to her advantage to- do so, and has ignored the decree when dissatisfied with it; and (6) that the issue raised by Mrs. Anderson had recently been resolved in the Minnesota courts. For her first point Mrs. Anderson challenges the jurisdiction of the Butler district court on the ground that jurisdiction had already been established over the parties, over the issues and over the minor child by the District Court of Sedgwick County and, secondly, she contends the court abused its discretion in not continuing the proceedings pending before it until after the issues had been passed on in Sedgwick County. As to these contentions it is appropriate to point out that K. S. A. 60-1501 provides in pertinent part that any party restrained of his liberty, or any parent, for the protection of an infant physically present in this state, may prosecute a writ of habeas corpus in the district court of the county in which the restraint is taking place. The restraint in this case was occurring in Butler County, where Anna and her mother were living. A similar question going to jurisdiction was considered in Love v. Love, 188 Kan. 185, 360 P. 2d 1061, a case decided prior to the enactment of K. S. A. 60-1501. In that case, the parents of three small children instituted habeas corpus proceedings in John son County to obtain custody from an unde who they alleged was unlawfully detaining the youngsters in Leavenworth County. This court said in the opinion that the question of jurisdiction really turned on a question of venue, and we pointed to the general rule that a court has no authority to issue a writ of habeas corpus directed to a person detained outside its territorial jurisdiction, but that application for the writ must be made within the district where the detention occurs. The Love decision is capsulized in Syllabus 2: “In a child custody case a proceeding in habeas corpus is in the nature of a proceeding in rem, the child being the thing concerned, and the application for a writ must be brought in the judicial district where the alleged illegal detention occurs.” Anna was physically present and being detained in Butler County, within the bounds of the Thirteenth Judicial District. Venue properly lay in Butler County. It is provided in K. S. A. 1973 Supp. 60-1610 (a) (i) that a court shall always have juxisdiction to make orders for the custody of a minor child if the child be physically present in die county. Under the principle of comity the Butler district court might, we presume, have deferred taking action on plaintiff’s application for the writ until after the District Court of Sedgwick County had conducted a final hearing, but it was not required to give priority and we discern no abuse of discretion when it proceeded to hear its own lawsuit expeditiously. While we look with no great favor on multiple litigation or legal maneuvering for position on the part of litigants (see Taber v. Taber, 213 Kan. 453, 456, 516 P. 2d 987) we are aware of no legal impediment to Judge Benson’s entertaining the habeas corpus action. The Butler district court had jurisdiction over the parties, over the subject matter and over the child, whether or not a suit for change of custody was pending elsewhere. The two actions were separate and distinct lawsuits and the question of priority of time in filing was immaterial. (Jeffers v. Jeffers, 181 Kan. 515, 313 P. 2d 233; Kraus v. Kraus, 171 Kan. 254, 232 P.2d 233; Taber v. Taber, supra.) Mrs. Anderson’s major thrxxst on appeal, however, is encompassed within the argument that the trial coxxrt erred (1) in giving full faith and credit to the Minnesota judgment and (2) in refusing to hear evidence as to an alleged change of circxxmstances. K. S. A. 1973 Supp. 60-1611 provides in pertinent part: “A judgment or decree of divorce rendered in any other state or territory of the United States, in conformity with the laws thereof, shall be given full faith and credit in this state. . . .” In Wear v. Wear, 130 Kan. 205, 285 Pac. 606, this court, in considering a predecessor statute, R. S. 1923, 60-1518, held: “It is the policy of the law of this state to give to a decree of divorce rendered in another state the same force and effect, in so far as that can be done, as though the decree had been rendered by a court of this state.” (Syl. ¶ 2.) This general principle has been echoed in subsequent cases. (Moloney v. Moloney, 163 Kan. 597, 185 P. 2d 167; Fincham v. Fincham, 174 Kan. 199, 207, 255 P. 2d 1018; King v. King, 185 Kan. 742, 748, 347 P. 2d 381.) In the recent case of Perrenoud v. Perrenoud, supra, the court held: “It is the settled policy of this state to recognize decrees of divorce of sister states as being effectual to terminate the marital relation of the parties where such decree is procured in harmony with the laws of the state where it is rendered.” (Syl. ¶ 3.) However, full faith and credit has only limited application to a child custody decree, it being inherent in the nature of such a decree that it is not final or conclusive but is always subjeot to the right of the parties to show a subsequent change of circumstances and conditions. (In re Bort, & c., 25 Kan. 308; Wear v Wear, supra; Price v. Price, 187 Kan. 292, 356 P. 2d 1013; Moloney v. Moloney, 167 Kan. 444, 206 P. 2d 1076; White v. White, 160 Kan. 32, 159 P. 2d 461; In re Thompson, 178 Kan. 1, 282 P. 2d 440; Perrenoud v. Perrenoud, supra; Miracle v. Miracle, 208 Kan. 168, 490 P. 2d 638.) In Lyerla v. Lyerla, 195 Kan. 259, 403 P. 2d 989, it was held: “An order awarding custody of a minor child is res judicata only as to matters as they existed when the order was made, and does not bar later inquiry into the issue of custody where circumstances have changed.” (Syl. ¶ 3.) Mrs. Anderson relies particularly on the decision in Miracle in challenging the trial court’s judgment. In brief, the facts in that case were as follows: Mr. and Mrs. Miracle were divorced in Kentucky. The mother was given custody of three minor daughters, subject to summer visitation rights. After the divorce Mrs. Miracle moved to Kansas taking the girls with her. At a later date the Kentucky court changed the order and granted custody of the girls to their father. The order changing custody was made in the absence of Mrs. Miracle and there was a dispute over whether she had been given notice. Be that as it may, Mr. Miracle journeyed to Kansas and on the basis of the Kentucky order commenced habeas corpus proceedings to obtain physical custody of the children. The trial court, when hearing the application for the writ, permitted Mrs. Miracle to introduce evidence of a change of circumstances occurring subsequent to the Kentucky decree placing custody in Mr. Miracle. At the conclusion of the evidence the trial court found that a change of conditions had taken place, and that custody should remain with the mother, subject to summer visitation rights. On appeal to this court, we affirmed, holding that a habeas corpus proceeding is a proper vehicle for determining questions relating to child custody; that the paramount concern in a custody hearing is the welfare of the child; that in the interest of the welfare of minor children physically present in Kansas, courts of this state have jurisdiction over their care and custody, although the court of a sister state has “concurrent jurisdiction”; and that a child oustody decree is inherently not final or conclusive but is subject to right of the parties to show a change of conditions and circumstances. (See Syllabi 2, 3, 4 and 5.) The Miracle opinion reflects a long line of decisions expressing the concern this court has had for the welfare and well-being of minor children. However, the Miracle decision is not of controlling force and effect in the instant case because of the marked dissimilarity in the factual backgrounds of the two cases, a matter on which we will comment later. The Butler district court found that Mrs. Anderson had not come into court with clean hands and it accordingly determined that -under the rationale of Perrenoud v. Perrenoud, supra, the writ should be granted. A synopsis of the Perrenoud case, which has many similarities to the case at hand, should prove helpful. Daniel and Sandra Perrenoud lived in Kansas City, Missouri. They had two small daughters. Following a separation Daniel moved to California. The girls were placed with maternal relatives who later took them to Daniel. After a year of separation Daniel filed divorce proceedings in California. Sandra failed to appear. In due time Daniel was granted a divorce and was awarded custody of the two children. Six months later Sandra appeared on the scene and filed a motion for change of custody, or in the alternative for rights of visitation. The California court made an interim order permitting Sandra to take the children to Johnson County for the summer, but directed they be returned before August 27. After returning to Kansas with the children, Sandra proceeded to file an action for divorce in the District Court of Wyandotte County and obtained, at that time, a temporary order of custody. Upon being apprised of this state of affairs, Daniel hastened to Kansas and applied for a writ of habeas corpus in Johnson County where the children were then living. The Johnson district court granted the writ, invoicing the doctrine of clean hands and giving full faith and credit to the California decree. Sandra appealed from the decision. Subsequently she obtained a divorce from the Wyandotte district court and was awarded custody of the children at the same time. Daniel appealed from that judgment. The two appeals were consolidated for hearing in this court. In essence this corut held on appeal that the California divorce decree was valid and entitled to full faith and credit under K. S. A. 1970 (now 1973) Supp. 60-1611 as dissolving the marriage relationship; that the Wyandotte district court had no jurisdiction over the subject matter of divorce, the marriage having previously been dissolved by decree of the California court, nor did it have jurisdiction to enter ancillary or final orders in connection with the divorce action. It was also held that the Johnson district court did not err, under all the surrounding facts and circumstances, in declining to hear evidence of changed conditions and in extending comity and full faith and credit to the California decree. We shall not engage in an extended or in depth discussion of the clean hands doctrine for it was fully delineated by Justice (now Chief Justice) Fatzer in authoring the Perrenoud opinion. However, we should like to quote the following passage from that decision as being especially germane to the situation at hand: ‘It is apparent that, on the basis of our statutes forming the basis of our ‘free discretion’ rule and a rejection of ‘full faith and credit’ or ‘comity’ with respect to recognition of child custody decrees rendered by a court of a sister state, the door is open wide, so to speak, to ‘forum shopping’ by scheming parents who seek a redetermination of their custodial rights in a more favorable jurisdiction, or seek to relitigate the question in courts of other states based upon an allegation of changed circumstances and conditions. Some decisions point out that such abuse may be prevented by the imposition of the ‘clean hands’ doctrine which prevents a parent from invoking the court’s jurisdiction if he is a fugitive from the state issuing such decree, or has made misrepresentations in some way to obtain the custody of the children, or is flaunting a foreign proceeding or decree. The doctrine seems to be making advancement in family law and is being relied upon in some jurisdictions where the circumstances merit its application. In cases of this character, the court is dealing with a matter equitable in nature where the child’s welfare is the paramount consideration, and it is a familiar equitable maxim that ‘[h]e who comes into equity must come in with clean hands.’ (Price v. Price, supra.) “The ‘clean hands’ doctrine was formulated and approved in Leathers v. Leathers, [162 C. A. 2d 768, 328 P. 2d 853], where it was held: “ ‘Courts of this state, by invoking the doctrine of “clean hands,” will recognize and enforce custody decrees of a sister state, without reexamination of their merits and regardless of a change of conditions, where there is misconduct or malfeasance on the part of the parent seeking such reexamination.’ (Syl. ¶ 6.)” (pp. 577, 578.) As gleaned from this record the facts fall neatly within the pattern outlined in Perrenoud: After a lengthy hearing of the Anderson divorce case, in which the custody of Anna was obviously litigated, the Minnesota trial court awarded custody to Mr. Anderson, carefully spelling out Mrs. Anderson’s rights of visitation and directing the father to pay “visitation alimony” in various graduated amounts to help enable Anna’s mother to use her visitation rights; on appeal to the Minnesota Supreme Court the trial court’s judgment was affirmed; approximately two months after the affirmance Mrs. Anderson received permission to bring Anna to Kansas for the four-weeks summer vacation; before the visitation period had expired, Mrs. Anderson brought proceedings in the Sedgwick district court seeking the permanent custody of Anna on the basis of an alleged change of circumstances. We believe the trial court in this instance was completely justified in refusing to hear evidence as to a change in circumstances or conditions and in applying the ancient maxim: He Who Comes into Equity Must Come with Clean Hands. (See 2 Pomeroy’s Equity Jurisprudence, § 363, p. 8 [Fifth Ed. S. Symons 1941]; 1 Bouvier’s Law Dictionary, Third Revision, “Equity”, p. 1063; 1 Story’s Equity on Jurisprudence, § 98, p. 98 [14th Ed. W. Lyon 1918].) It is clear that Mrs. Anderson, while still in Minnesota, could have applied to the Minnesota court, which had heard and was familiar with the case, for a change of custody on the basis of changed conditions. She failed to do so. Instead she received permission to bring Anna to Kansas where she promptly instituted change of custody proceedings in the courts of this state. Her conduct smacks of “forum shopping” in its baldest form. As was so aptly put in Perrenoud: . . The ‘changed circumstances’ rule does not permit a parent to go from one state to another relitigating issues which have been very recently resolved in another jurisdiction. (Perry v. Superior Court, [7 Cal. App. 3d 236, 86 Cal. Rptr. 607].)” (p. 580.) This case is clearly distinguishable from Miracle v. Miracle, supra, on which the defendant so strongly relies. At the time Mrs. Miracle brought the children to Kansas to make their home, she was in possession of an order of the Kentucky corut, granting her the rights of custody. She had not removed the children from Kentucky surreptitiously or in violation of any order made by the court in Kentucky. Mr. Miracle later obtained a change of custody order from the Kentucky court, in the absence of Mrs. Miracle who denied receiving notice, and it was he who' came to Kansas and instituted habeas corpus proceedings. Only then did Mrs. Miracle offer evidence of changed circumstances, which under our decisions she was entitled to do. (Moloney v. Moloney, supra; White v. White, supra; Price v. Price, supra.) There were no unclean hands; no forum shopping was involved; no estoppel was asserted. In conclusion, and for the reasons set forth in this opinion, we are constrained to hold that the Butler County District Court did. not err in granting Mr. Anderson’s petition for writ of habeas, corpus. The judgment is affirmed.	[ -16, 124, -43, 45, 58, -95, 106, -7, 115, -93, 37, -45, -85, -57, 16, 105, 124, 47, 113, 121, 75, -77, 6, -64, 112, -77, -15, -45, -77, 111, -3, 84, 72, 33, -126, 83, 98, -128, -127, 20, -58, 17, -87, 108, -63, -126, 36, 107, 18, 15, 117, -49, -13, 111, 121, -10, 104, 107, -33, -68, -108, -68, -117, 12, 79, 2, -80, 36, -116, -92, 88, 14, -116, -80, -126, -24, 58, -106, -106, 116, 75, -69, 8, 112, 70, 5, 77, -10, -39, -104, 7, -2, -99, -90, -38, 120, 9, 69, -66, -67, 116, 85, 123, 126, -17, 13, 45, -28, 76, -22, -106, -103, -115, -104, 4, 32, -29, -93, 32, 81, -49, -78, 92, 82, 59, -69, -86, -78 ]
The opinion of the court was delivered by Fromme, J.: This is an appeal by the Farmers Insurance Exchange from judgments entered on jury verdicts in favor of Jesse S. Venable and Import Volkswagen, Inc. In the interest of conservation we will refer to the parties as Farmers, Venable and Import VW, respectively. Suit was brought by Venable against Farmers for loss under a collision insurance policy and against Farmers and Import VW for failure to properly repair a Volkswagen camper. The 220 page record of the proceedings in the trial court indicates the matter was hotly contested on the claim and counterclaims. A great number of issues were presented by the pleadings, and a trial was undertaken without the benefit of a pre-trial conference. The case was submitted to the jury on 12 special questions along with 10 possible verdict forms. It is surprising that the jury was able to answer the questions intelligently and fill in the proper verdict forms. We will return to this feature of the appeal later. By way of background the following facts were developed at the trial. Venable purchased a 1969 Volkswagen camper on September 5, 1969, for $4,320.00. It had been driven 6,000 miles before it was purchased. Farmers insured the vehicle against collision with a $100.00 deductible provision in the policy. Three weeks later a collision occurred with another vehicle and Venable was hospitalized for a short period of time. Farmers was notified of the damage to the camper and was asked to evaluate the loss under the policy. Import VW was notified to make an estimate of the damages and thereafter Venable authorized Farmers to take the vehicle to Import VW. An estimate of the cost of. repairs was prepared by Import VW. The estimate came to $1,607.00 plus the cost of any repairs to the air conditioning and the motor, which items were left open. There was conflicting evidence as to whether Venable agreed to have his vehicle repaired. It took Import VW approximately three months to repair the camper and Venable took possession of the repaired vehicle around the first of January, 1970. He gave a check to cover the $100.00 deductible in his policy but later stopped payment on his check. The evidence indicates that the repairs and workmanship were not satisfactory and both Farmers and Import VW were so' notified by Venable. It appears that even after the repairs were completed there was difficulty in steering, in shifting gears, in loose body assembly, in front-end alignment, and in the electrical wiring. Venable lived in Manhattan and Import VW was located in Wichita. Further repair of the vehicle in Manhattan .was authorized by Farmers and three repair shops in that neighborhood worked on the camper at separate times. Venable continued to drive the camper in between repair jobs, and in September, 1970, the vehicle was returned to Import VW because of a burned out motor. The motor had been ruined from lack of air circulation caused by rags and paper left in the engine compartment, presumably by Import VW. The vehicle had been driven over 17,500 miles. The new engine was installed and Venable returned to pick up his camper in November, 1970. Farmers had not been notified of the installation of the new motor. There were no charges made by Import VW on this installation since it was covered by the original factory warranty. Farmers had previously issued a draft to both Import VW and Venable for $2,097.43 to cover the original repairs, less the $100.00 deductible due from Venable under his policy. Before releasing the camper to Venable Import VW demanded that Venable endorse the $2,097.43 draft. Venable refused to do so because the signature endorsement contained a release to Farmers on all damages arising from the collision of September 28, 1969. Venable left the repair shop without his camper, and the present suit was filed. The case was tried, and when, the verdicts were returned Import VW had a judgment against Farmers for the cost of the original repairs of $2,097.43 less $171.83 for inadequate repairs and work manship which had been corrected in other repair shops and paid by Fanners. This left a net sum to be paid by Farmers to Import VW of $1,925.60, for which judgment was entered. There were additional verdicts returned in favor of Venable and against Farmers for $6,000.00 for loss of use of camper and for $820.00 as additional damage arising from a decrease in the value of the vehicle as finally repaired, making a total of $6,820.00 due from Farmers to' Venable. By agreement of the parties Venable had previously been given possession of his camper after the action was filed, so when the trial ended Venable had possession of the repaired vehicle (worth approximately $4,230.00 at the time of the collision) plus a judgment for $6,820.00. After judgments were entered Farmers filed various motions including one' requesting the court to order a remittitur of all sums in excess of $2,097.43. Farmers contended in the court below as on appeal that any damages in excess of $2,097.43 could not be supported by either the law or the evidence. Venable then filed a motion asking the court to determine and assess attorney fees against Farmers as authorized by K. S. A. 40-256. The statute provides for payment of attorney fees if it appears the insurance company refused without just cause or excuse to pay the full amount of the loss due under its policy. These motions were heard by the trial court. A remittitur on damages for loss of use was ordered by the court in the amount of $2,700.00, apparently this was based upon lack of evidence. However, the court found that the insurance company had refused without just cause or excuse to pay the full amount of the loss and assessed attorney fees of $2,700.00 against Farmers and in favor of Venable. Final judgments were entered reflecting these final changes. Farmers appeals from the judgments and attempts to present 23 separate points of error for our consideration and research. In order to adequately consider appellant’s primary points of concern and place the case in proper perspective it will be necessary to review several established principles of law on which there was no unanimity among the parties in the court below and none on appeal. The liability of a property insurer is based upon its contraot, subject to conditions imposed on the contracting parties by regulation and statute. From the fact that the insurer’s liability is contractual it follows that in an action for damages brought upon a contract of insurance the provisions of the contract generally govern the measure of recovery rather than the rules relating to damages in tort cases. (Saul v. Saint Paul-Mercury Indemnity Co., 173 Kan. 679, 250 P. 2d 819; 8 Blashfield Automobile Law and Practice, § 333.2, p. 180; see also Anno. 43 A. L. R. 2d 329, § 1, [b].) Generally in tort actions brought to recover damages to an automobile a reasonable amount may be recovered to compensate the owner for the loss of use of the automobile while it is being repaired with ordinary diligence plus the cost of repairs necessary to restore it to substantially its previous condition and value at the time the damage was incurred. The amount which can be recovered in tort cases for loss of use is limited to the period reasonably necessary to complete the repairs where repair is feasible. (Lester v. Doyle, 165 Kan. 354, 194 P. 2d 917.) The amount to be recovered, however, should not exceed the value of the vehicle before the injury. See Lester v. Doyle, supra, Syl. ¶ 1, and PIK, Civil, 9.10, p. 259. In case of complete destruction of the vehicle see Peterson v. Bachar, 193 Kan. 161, 392 P. 2d 853. As previously mentioned our present case is not a tort case and damages allowable for loss of use are not necessarily limited to that period of time which the jury finds to have been necessary with ordinary diligence to restore the vehicle to substantially its previous condition and value. The action here was brought on a contract of collision insurance. The policy provides for the limit of liability as follows: “Limit of Liability under Part IV “The limit of the Company’s liability for loss shall not exceed the actual cash value of the damaged or stolen property, or if the loss is of a part, its actual cash value, at the time of loss, nor what it would then cost to repair or replace the damaged or stolen property or part with other of like kind and quality, less depreciation.” The policy further provides: “Payment of Loss under Part IV “The Company may pay for the loss in money or may repair or replace the damaged or stolen property or any of its parts, or may return any stolen property with payment for any resultant damage thereto at any time before the loss is paid or the property is so replaced, or may take all or such part of the damaged or stolen property at the agreed or appraised value, but there shall be no abandonment to the Company.” This latter provision gives the insurance company the option to repair, restore or replace the damaged vehicle in lieu of paying the amount of insured loss. In 15 Couch on Insurance 2d, § 54:30, p. 338, it is stated: “As a condition to the exercise of the election to repair or rebuild, it is essential that the property be in such a condition that it can be repaired or rebuilt and thereby be restored to its condition prior to the loss. Consequently, where the property cannot be so restored or repaired, the insurer cannot discharge its obligation by attempting to make a restoration or reconstruction which by definition will not be successful.” (Accord, 8 Blashfield Automobile Law and Practice, § 343.10, p. 338.) In, the present case Farmers elected to repair and rebuild the camper which it had a right to attempt under its contract. When an insurer makes an election to repair or rebuild under a “repair, restore or replace clause” in its policy the insurer is then obligated to put the vehicle in substantially the same condition as it was prior to the collision so as to render it as valuable and as serviceable as before. In addition the insurer, in exercising its option to repair under the policy, must complete such repairs within a reasonable time. (15 Couch on Insurance 2d, § 54:42, p. 343.) If the repairs or workmanship are defective or the insurer has unreasonably delayed or not acted in good faith additional damages may be recovered. (Motors Insurance Corporation v. Howard, (Ky.) 291 S. W. 2d 522; c. f. Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533.) As a measure of damages where repair fails to restore the property, the value of the vehicle immediately before the damage less the value immediately after repairs are made, plus the reasonable cost of the repairs may be applied. See Wholesale Grocery Co. v. Kansas City et al., 115 Kan. 589, 224 Pac. 47; Broadie v. Randall, 114 Kan. 92, 94; 216 Pac. 1103, 32 A. L. R. 708; and 43 A. L. R. 2d Later Case Service, 327-351, § 5. Moreover, when an insurer elects to repair the vehicle it is bound by its election and any resulting damages are based on the agreement to repair, so that the damages recoverable may in such case be more or less than the amount of the loss suffered under the policy. (15 Couch on Insurance 2d, §54:56, p. 350; 8 Blashfield Automobile Law and Practice, § 343.10, p. 340.) In Campbell v. Calvert Fire Ins. Co., 234 S. C. 583, 109 S. E. 2d 572, the Supreme Court of South Carolina said: “. . . [W]here there is a partial loss and the automobile can be repaired and restored to its former condition and value, the cost of repairs is the measure of liability, less any deductible sum specified in the policy. But if, despite such repairs, there yet remains a loss in actual value, estimated as of the collision date, the insured is entitled to compensation for such deficiency. Under these circumstances some courts adopt as the measure of damages the difference between the fair cash value of the car before and after the collision. . . .” (p. 592.) In our present case the evidence indicates and the jury found that the repairs attempted on the camper did not fully restore the vehicle to its condition and value immediately before the collision. The measure of damages recognized by the South Carolina court and by this court in Wholesale Grocery Co. v. Kansas City et al., supra, and Broadie v. Randall, supra, was properly applied. The loss in value after repairs was determined by the jury to be $820.00 and there is testimony by the insured to support a judgment for this amount. Next we turn to the item for loss of use. In 15 Couch on Insurance, §54:180, p. 427, the author states: “Damages for the loss of use cannot be included in measuring the liability on an insurance policy if the contract does not so provide. “But where the insurer unreasonably delays in fulfilling its contract obligations, it is liable for the loss of the use of the property sustained by the insured. For example, an insured is entitled to recover from the automobile insurer for the damages to the truck and for the loss of the use of the truck resulting from an unreasonable delay in making repairs.” (Accord, 8 Blashfield Automobile Law and Practice, § 333.9, p. 200.) In such case the insurer has a reasonable time to make the repairs. During such reasonable time no damages for loss of use may be recovered. But when unreasonable delay occurs the insurer may be held hable for loss of use for so long as the unreasonable delay continues without just cause or excuse. It was agreed in our present case that the contract of insurance did not provide for loss of use but there was evidence from which the jury might find that the insurer unreasonably delayed in fulfilling its contract obligations after it elected to repair the vehicle to its condition and value immediately preceding the collision. In such case it should be noted the measure of damages for loss of use is entirely different from that in tort actions and the right to recover for loss of use does not even arise until and unless the insurer unreasonably delays in making its election or in fulfilling its contract obligations to repair or restore. (15 Couch on Insurance 2d, §54:55, p. 350.) Appellant Farmers argues that it never at any time refused to pay for repairs and that any unreasonable delay was the fault of Import VW. It further argues that Import VW was an independent contractor, not an agent of Farmers, and the failure to effect proper repairs within a reasonable time should not be a liability placed on Farmers. We cannot agree. When an insurer exercises its option to repair under the contract of insurance it assumes the duty and responsibility to restore the property to its former condition and value. It is immaterial how it attempts to fulfill that duty, whether by agent or independent contractor. In 15 Couch on Insurance 2d, § 54:37, p. 341, the author states: “Where the insurer exercises its option to repair it is in the same legal position as any person making repairs, insofar as liability to strangers is concerned. Consequently, where a collision insurer has agreed to repair and actively takes the matter in hand, making all necessary arrangements, the reasonable conclusion is that the insurer thereby assumes the duty of having the repairs made with due care; and it is not relieved of this duty merely because it chooses to select an independent contractor to make the repairs, and refrains from exercising any supervision over his work.” However, in order to recover for loss of use from an insurer where it has elected to repair the vehicle under the terms of the policy of insurance the insured must establish by evidence what is a reasonable time in which to repair the vehicle as well as some basis for the jury to arrive at an amount to be allowed as damages. The jury should not be allowed to merely speculate in arriving at damage for loss of use. One who claims damages on account of a breach of contract must not only show the injury sustained, but must also show with reasonable certainty the amount of damage suffered as a result of the injury or breach. (Johnston v. Lanter, 98 Kan. 62, 65, 157 Pac. 266.) In order for the evidence to be sufficient to warrant recovery of damages there must be some reasonable basis for computation which will enable the jury to arrive at an approximate estimate thereof. (Vanguard Insurance Company v. Connett, 270 F. 2d 868 [10 CA]. See also 15 Couch on Insurance 2d, § 54:53, p. 349.) Measured by the above standards, we are of the opinion that the evidence of plaintiff Venable was wholly insufficient on loss of use to submit that item of damage to the jury. We find no evidence in the record by which plaintiff even attempts to establish what is a reasonable time to repair the vehicle under the circumstances. In addition there was no admissible evidence introduced during the trial of the value of the use of the vehicle to plaintiff or the cost of renting a similar vehicle. A letter from Venable’s attorneys to Farmers, written in an attempt at settlement, was inadmissible in evidence to establish the amount of loss and, the contents thereof could not be considered as a reasonable basis for computation of loss of use. (See K. S. A. 60-452 as to the effect and admissibility of an offer to compromise.) Appellant Fanners questions the right of the trial court to award attorney fees. The reasonableness of the fee is not questioned. The thrust of Farmers’ argument is that, when Venable accepted the offer to repair and the vehicle was placed in the hands of Import VW, the extent of Farmers’ liability was then limited to the cost of repairs. It is admitted that Farmers never refused to pay any of the bills submitted to it for repairs. Farmers argues it had no further liability and it had the right to demand that Venable seek redress for his grievances against Import VW. Again we cannot agree. What has previously been said concerning an insurer’s duties and liabilities under a collision insurance policy when it elects to repair a vehicle clearly establishes that Farmers’ position is untenable. The insurer continues to have a duty by reason of its election to repair and restore the vehicle and, in addition, full restoration must be completed without unreasonable delay. It matters not whether the insurer relies on an agent or on an independent contractor if there is a failure to fulfill its duties assumed under its election to repair. Much has been written by this court on the proper construction and application of the statute permitting the allowance of attorney fees in actions on insurance policies. For a fist of the many cases see the case annotations appearing under K. S. A. 40-256. Some of the reasoning of the court on this subject which is applicable here appears in Lattner v. Federal Union Ins. Co., 160 Kan. 472, 163 P. 2d 389, where it is said: “. . . The purpose of the statute allowing an attorney fee in insurance cases is ... 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 his policy, he is successful in that effort. . . .” (pp. 480, 481.) There can be little doubt that Farmers failed to acknowledge and fulfill the duties and responsibilities it assumed when it elected to repair the vehicle. The assured was compelled to sue on his policy and he was successful in proving Iris entitlement to amounts in excess of the repairs authorized by the insurer. The refusal to pay for the loss in value was without just cause or excuse and the allowance of attorney fees was proper. One additional matter must be considered. The parties to this appeal do not deny that the original cost of the repairs to the camper came to $2,197.43, and that Farmers was liable under its policy for all but $100.00 of that amount. It is likewise agred that the policy issued to Venable on which the present action is based required him to pay the first $100.00 on repairs in case of a collision and that said amount has not been paid. Although we find nothing in the special questions or in the verdicts returned by the jury from which we can say such amount was found due and owing from Venable on the repairs we hesitate to remand the case for further proceedings on such a small matter over which there seems little if any valid dispute. The item appears to have been overlooked in both the court’s instructions and in the jury’s verdicts. K. S. A. 60-2105 provides: “The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it, the court shall render such fined judgment eis it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.” (Emphasis supplied.) It appears upon the whole record before us that substantial justice requires that the final judgment in this case include payment for repairs by Venable to Import VW of the amount of this $100.00 deductible due from him under the policy. In summary and in accordance with the views expressed herein the judgments of the trial court dated December 10, 1971, are affirmed and modified as follows: (1) The amount of the judgment awarded for loss of use of plaintiff’s vehicle ($6,000.00) is reversed because of insufficiency of evidence to support the same; (2) The judgment in favor of plaintiff Venable against the Defendant, Farmers Insurance Exchange, in the amount of $820.00 for the difference in value of the vehicle immediately prior to the collision and after the repairs, and tire judgment in the further amount of $2,700.00 for attorney fees is affirmed; (3) The judgment of defendant and cross-claimant, Import Volkswagen, Inc., against the defendant, Farmers Insurance Exchange, in the amount of $2,097.43 less the offset o£ $171.83, leaving a net sum due on the judgment of $1,925.60, is affirmed; (4) The defendant and cross-claimant, Import Volkswagen, Inc., is granted judgment against the plaintiff,, Jesse S. Venable, in the amount of $100.00, such being the agreed amount of the deductible provided in the policy of insurance on which suit was filed. Accordingly the judgment stands affirmed as modified.	[ -12, 124, 89, -114, 4, 34, 42, 90, 84, -123, 39, -45, -1, -61, 21, 89, -26, 127, 68, 98, -41, 51, 55, 50, -105, -69, -5, -44, -15, 73, 117, -42, 76, 48, -118, 85, -126, -64, -123, 92, -58, 6, -69, -3, 89, 83, -76, 58, 80, 73, 117, -98, -29, 46, 25, 71, 47, 32, 107, 33, -63, -79, 98, 15, -1, 23, 48, 4, -102, 1, -38, 12, -112, -79, 104, -23, 115, -90, -106, -12, 37, -103, 0, -90, 103, 17, 21, -49, -8, -120, 38, -40, 15, -124, -80, 120, 19, 33, -65, -97, 122, 18, 68, -2, -36, 93, 95, 97, 7, -117, -110, -93, -17, -16, -100, -120, -17, -113, 53, 117, -49, -6, 93, 69, 94, -101, 70, -94 ]
The opinion of the court was delivered by Owsley, J.: This is an action instituted by the plaintiff pursuant to K.S.A. 79-2005 (now K.S.A. 1973 Supp. 79-2005) for taxes paid for the year 1969 under protest. The plaintiff alleges his property was illegally assessed for tax purposes at forty-three percent of the fair market value, which resulted in a tax so excessive in relation to the assessment of all other property in Shawnee County, Kansas, as to constitute constructive fraud and discrimination against plaintiff and his property. The defendant denies the taxing officials of Shawnee County arbitrarily and fraudulently assigned a value for tax assessment purposes against plaintiff’s property in an amount which was not the actual fair market value of said property or which in any way interfered with or discriminated against plaintiff, and further specifically denies there was any illegal valuation assigned to plaintiff’s propeity for tax purposes. Judgment was entered for the defendant and plaintiff appeals. The trial court made findings of fact and conclusions of law and plaintiff challenges the conclusions of law. Since the findings of fact are accepted by the parties as supported by substantial competent evidence, the record does not reveal the evidence before the trial court. The findings of fact and conclusions of law are as follows: “Findings of Fact “1. That plaintiff at all times material herein was the owner of a long term lease on the following described property: “Kansas Avenue, Lots 267, 269 and 271, in the City of Topeka, Kansas, the terms of which lease require the plaintiff to pay all taxes assessed against said property. “2. That for the year 1969, the within described real property had a fair market value of $198,200.00. “3. That for the year 1969, the taxing officials of Shawnee County, Kansas, established an assessed value to the above described property at $86,560.00. “4. That plaintiff’s property was taxed for the year 1969 the total sum of $11,760.04, of which sum the plaintiff paid under protest the amount of $5,880.02 on the 19th day of December, 1969, to the Treasurer of Shawnee County, Kansas, as provided by law. “5. That the plaintiff timely commenced his suit to recover the amount of taxes paid under protest on the 16th day of January, 1970, as is provided by law. “6. That for the year 1969 real property in Shawnee County, Kansas, was assessed at a varying ratio of 6% to 45% of fair market value. “7. That for the year 1969 the plaintiff’s property was assessed at a ratio equal to 43% of fair market value. “8. That all real property in Shawnee County, Kansas, for the year 1969 was assessed at a median ratio of 15% of fair market value. “9. That there is no actual fraud or bad faith on the part of the taxing officials and that Mr. Schnellbacher, the Assessor, made every effort since assuming that office in 1969 to comply with the relevant tax statutes. ‘TO. That by virtue of the status of the assessment of all the property in Shawnee County in 1969 said Assessor had some 64,000 parcels of real estate on the tax rolls of this county and could only reassess each year individually, new construction and requests for revaluation that came into the assessor’s office, which amounted to approximately 2500-3500 appraisals a year. “11. That over a period of many years property which had been placed on the tax rolls at a certain figure remained the same unless improvements were made thereon or requests were made for revaluation and when said revaluations were made the property was appraised in accordance with other property in the existing area so that inequities would not take place within that area. “12. That this resulted in the wide variance mentioned in Finding of Fact #6. “13. That plaintiff’s property along with all downtown properties was reappraised in 1965 by an independent appraisal company, Colelayer and Trumble out of Ohio, and that plaintiff’s property and all property on Kansas Avenue was equalized at that time. “14. That plaintiff’s property was in no way assessed differently from other like property on Kansas Avenue. “Conclusions of Law “That under the facts in this case the Court is of the opinion that there was not a systematic, arbitrary or intentional valuation of the property of the plaintiff herein at a substantially higher valuation than they placed on other properties within the same tax district and particularly property of a like nature. The Court further feels that the plaintiff has not carried his burden of proof in convincing this Court that his assessment was grossly discriminatory as to amount to constructive fraud on the part of the taxing officials of this county.” The plaintiff lists three points on appeal. Each of the points is aimed at the validity of the assessment of plaintiff’s property; hence, they will be considered as raising an identical question of law. It should immediately be apparent to all persons involved in tax matters in this state that this case is distinctive in that the admissibility of the ratio studies authorized by K. S. A. 79-1436 (now K. S. A. 1973 Supp. 79-1436) as evidence, is not involved. The determinative feature in many of our like cases has been the use of the ratio studies as evidence. (Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791; Sebits v. Jones, 202 Kan. 435, 449 P. 2d 551; Panhandle Eastern Pipe Line Co. v. Dwyer, 207 Kan. 417, 485 P. 2d 149; Northern Natural Gas Co. v. Williams, 208 Kan. 407, 493 P. 2d 568.) The cases principally relied on by plaintiff are Kansas City Southern Rly. Co. v. Board of County Comm’rs, 183 Kan. 675, 331 P. 2d 899; Addington v. Board of County Commissioners, 191 Kan. 528, 382 P. 2d 315; and Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117. The Kansas City Southern case merely held the taxpayer’s petition stated a cause of action. The petition alleged that the railroad was assessed at sixty percent of its true value while other property in the county was assessed at twenty-one percent. The court stated that the alleged acts on the part of the commission, when coupled with the alleged knowledge it had at the time were so arbitrary, oppressive, and grossly discriminatory as to constitute constructive fraud. At the time this case was decided the statutes of this state required that all property, real or personal, be assessed at its actual value in money (G. S. 1949, 79-1406), and required that both real and personal property be assessed at its true value (G. S. 1949,79-1401). In Addington, the plaintiff’s grain elevator in Morton County was assessed at thirty percent of its true value in accordance with the grain elevator schedule compiled by the director of property valuation, while the median ratio of the assessed value of real estate in the same county was twelve percent of actual value. In reversing the lower court’s judgment and holding the assessment of the Addington elevator property to be discriminatory, we said: “Uniformity in taxing implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of assessment as well as in the rate of taxation. . . . “. . . Uniformity of taxation does not permit a systematic, arbitrary or intentional valuation of the property of one or a few taxpayers at a substantially higher valuation than that placed on other property within the same taxing district; however, this uniformity and equality in a constitutional and statutory sense does not require mathematical exactitude in the assessment valuation of property for taxation. In the instant case if all the property in the county had been assessed at thirty percent of its true value, plaintiff would have no cause to complain. The fraud upon plaintiff’s rights resulted from the arbitrary distinction made between his elevator property and other property in the county. Mere excessiveness of an assessment or errors in judgment or mistakes in making unequal assessments will not invalidate an assessment, but the inequality or lack or uniformity, if knowingly high or intentionally or fraudulently made, will entitle the taxpayer to relief. (Bank v. Lyon County, 83 Kan. 376, 111 Pac. 496; Hamm v. State, [Minn. 1959], 95 N. W. 2d 649.)” (pp. 531, 532.) We again point out that at the time of the decision in Addington the statutes of Kansas required real and personal property to be assessed at its true value. In Beardmore, the evidence disclosed that the taxpayers’ oil and gas properties were assessed at thirty percent of justifiable value as the statutes then required, while at the same time real estate was knowingly assessed by the same taxing officials at fourteen percent of its justifiable value. We held that the gross discrepancy between the assessed value of Beardmores’ oil and gas properties and the assessed value of real estate in Hodgeman County constituted constructive fraud in the sight of the law. Prior to the decision in Beardmore the legislature enacted K. S. A. 79-1439 (Vol. 6, 1964), (now K. S. A. 79-1439), which states: “From and after January 1, 1964, all real and tangible personal property which is subject to general property taxes shall be assessed uniformly and equally at thirty percent (30%) of its justifiable value, as hereinafter defined and provided.” In the instant case the admitted facts disclose the taxpayer’s property for the year 1969 had a fair market value of $198,200. The plaintiffs property for the year 1969 had an assessed value of $86,-560. The assessed value was forty-three percent of the market value. The admitted facts also disclose that for the year 1969 real property in Shawnee County was assessed at from six percent to forty-five percent of fair market value and that the median for real property was fifteen percent of fair market value. Notwithstanding these findings, the trial court held there was not a systematic, arbitrary or intentional appraisal of the plaintiff’s property at a substantially higher valuation than other properties within the same taxing district, and particularly property of a like nature. The court further stated the plaintiff had not carried his burden of proof to convince the court the assessment was so grossly discriminatory as to amount to constructive fraud. It is the law of this jurisdiction that the assessment of property, when done in accordance with the law, is an administrative function in which courts will not interfere or substitute their judgment. If, however, the taxing officials do not perform their duties in accordance with the law the issue presented to the court is not the exercise of administrative judgment, but the legality of their acts. Builders, Inc. v. Board of County Commissioners, 191 Kan. 379, 381 P. 2d 527; Mobil Oil Corporation v. Medcalf, 207 Kan. 100, 483 P. 2d 1111.) The Constitution of the State of Kansas states: “The legislature shall provide for a uniform and equal rate of assessment and taxation, . . (Art. 11, Sec. 1.) Since the power of taxation is a legislative function and the legislature is specifically charged with providing equal rate of assessment it has authority to provide the means and agencies to enforce its responsibility. Silven v. Osage County, 76 Kan. 687, 92 Pac. 604.) In furtherance of this purpose the legislature directed all property, real and personal, be assessed at thirty percent of the fair market value. We are concerned with the right of the taxing officials to assess the property at any figure other than thirty percent of the fair market value. It is natural that the legislative directive of thirty percent and the constitutional mandate of uniformity would reach its battleground in the courts. The defendant argues that in no event should the court lower the assessed value to less than thirty percent of fair market value. To do otherwise would override the legislative mandate and impose the criminal sanctions of K. S. A. 79-1418. In Northern Natural Gas Co. v. Williams, supra, we emphasized for the first time in a long series of tax cases that discrimination is not rectified by creating more discrimination. It was recognized that in the involved county, urban property, personal property, oil and gas leases, and public utilities were assessed at thirty percent of justifiable value. To grant the relief requested by Northern by lowering its assessment to the median ratio of twenty-one percent applicable to all real estate in the county, would discriminate against other property assessed at thirty percent of justifiable value. Property assessed at thirty percent of justifiable value exists throughout the state, including Shawnee County. To grant the relief requested by the taxpayer in this case to the median of fifteen percent of fair market value of real property would result in creating discrimination against those whose property is assessed at thirty percent. The constitutional requirement of uniformity takes preference over a legislative directive to assess at a fixed percentage of justifiable value. (Addington v. Board of County Commissioners, supra.) Uniformity of tax burdens can never be achieved in this state between a taxpayer within a county and between taxpayers in different counties by adjusting individual assessments to the median ratio of real property in each county. We are inclined, in the interest of uniformity throughout the state, to stress the legislative direc tive to assess at thirty percent of justifiable value. An individual assessment is usually challenged by a showing that the median ratio for real property for that county is substantially below tibe challenged assessment. To permit relief on that basis creates further discrimination against all taxpayers in every county who are assessed at the legislative directed rate of thirty percent. It also promotes a continuous trend by the involved county to further depart from the legislature’s mandate. Means must be sought to avoid these results. It can best be done by bold action of assessors, reviewing authorities, and tibe coruts to promote uniform assessment at the statutory rate. Authority to achieve this end is not lacking. The director of property valuation by K. S. A. 79-1404, Sixteenth, has the power to require any county board of equalization to raise or lower the value of any property “. . . to the end that all property shall be valued and assessed in the same manner. . . . ” Similarly, the State Board of Tax Appeals, sitting as a state board of equalization, has power to equalize the assessment of all property in the state. (K. S. A. 79-1409.) The power delegated by the legislature to the director of property valuation to equalize taxes by blanket order was approved by this court in the recent case of State, ex rel., v. Dwyer, 208 Kan. 437, 493 P. 2d 1095. The order was directed to the county commissioners of ninety-six counties to adopt a resolution that the county assessor apply to each class of rural agricultural investment land the valuation percent changes for the year of 1971 as shown in the directive. The corut said: “The attainment of perfection in the area of taxation will seldom, if ever, be likely. So long as imperfection inheres in humankind, the institutions which mankind creates will doubtless be infected with the same virus. But progress does occur from time to time. This is exemplified, we believe, in the plan contrived by the director to equalize rural property values. . . (p. 446.) In the instant case the taxpayer’s property has a fixed and stipulated value. To assess the property at any percentage creates discrimination against property not assessed at the same percentage. Conceding some discrimination is inherent in our conclusion it would seem logical that adherence to the statutory directive of thirty percent of justifiable value should dominate. Any conclusion other than this would enhance discrimination rather than deter discrimination. If we must judicially acknowledge discrimination exists we prefer that those discriminated against are not those assessed at the rate designated by the legislature. We distinguish the Kansas City Southern case on the basis the case was decided on whether the petition stated a cause of action. It has no precedential value in this case in the absence of factual findings. We distinguish Addington on the basis the thirty percent rule was not in effect and no property in Morton County was assessed at its true value. In Beardmore, the statutory directive of thirty percent of justifiable value was in existence. The taxpayers’ oil and gas properties were assessed at thirty percent as compared to the median real estate assessment of fourteen percent. No argument was made that other real and personal property in Hodgeman County was assessed at thirty percent of true value. We must disapprove the result in Beardmore to the extent that it is in conflict with the decision in this case. We direct attention to K. S. A. 1973 Supp. 79-1447, which provides: “On and after January 1, 1974, any county in this state in which the real and tangible personal property which is subject to property taxes is not appraised and assessed as required by K. S. A. 79-1439, and acts amendatory thereof or supplemental thereto, such county and the taxing subdivisions of the state located therein shall not thereafter receive any state moneys from the local ad valorem tax reduction fund which would otherwise be payable to such county under the statutes of this state until such county shall have been determined to be in compliance with said section 79-1439, as amended. “The director of property valuation shall on September 15, 1974, and annually thereafter, notify the director of accounts and reports of any county which is not in compliance with the provisions of K. S. A. 79-1439, as amended, and of the variances from compliance; and the director of accounts and reports shall withhold moneys distributed from the local ad valorem tax reduction fund during the next succeeding budget year, otherwise payable to such counties under the laws of this state until the legislature shall hereafter direct the proper disposition of the money so withheld: Provided, That the director of property valuation shall prior to the notification of the director of accounts and reports verify the fact that such county is not in compliance with such law by conducting spot valuation appraisals of property of the various classes located within such county.” Retention of local ad valorem tax reduction fund otherwise payable to counties for failure to comply with K. S. A. 79-1439 is a drastic sanction. Criminal sanctions against taxing officials who knowingly and willfully assess property other than as provided by law are set forth in K. S. A. 79-1426 and are punishable by fine, imprisonment and forfeiture of office. These sanctions exemplify the unyielding attitude of the legislature to enforce the thirty percent law. When a taxpayer s property is appraised for tax purposes at a fixed sum there can be no justification for assessing the same at forty-three percent, rather than the statutory rate of thirty percent. To do so constitutes arbitrary, oppressive action by the taxing officials with sufficient discrimination to constitute constructive fraud. Accordingly, we must reverse the trial court and direct an assessment of the taxpayer s property at the statutory rate. Computation of plaintiff’s recovery for taxes paid under protest should be made accordingly. Reversed with directions.	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The opinion of the court was delivered by Hatcher, C.: This is an appeal from a judgment in favor of the defendants in an action for personal injuries caused by a fall on a basement stairway alleged to be due to a faulty banister. As chiefly trial errors are raised on appeal, the facts may be highly summarized. In the summer of 1964, the plaintiff opened a new and used furniture business at 6100 State Avenue in Wyandotte, County, Kansas. She had an older store at 4360 State Avenue where she had previously resided. She had just rented from the defendants one side of a duplex which the defendant, Mr. Jackson, had built at 1521 N. 63rd Terrace. She was residing there on July 27, 1964. On that day she had returned to the duplex from 6100 State Avenue where she had been preparing for a “grand opening”. She intended to bathe and change clothes. She had changed to a robe and slippers when she remembered that her dog, which had been placed in the basement through the garage door the day before, should be given a pill. The plaintiff started down the basement stairs which were clearly visible due to broad daylight coming through a half-window door at the foot of the stairs. She knew the stairs were steep, but continued to descend. She stated that she fell against the wall which was on her left but later testified that she first fell to her right. The handrail was attached to the wall and was not loose at either the top or middle attachment spacer. Plaintiff suffered injuries and brought an action charging the defendants with negligence in the construction and maintenance of the flight of staffs and the banister. The case was tried to a jury which returned a verdict in favor of the defendants. The plaintiff has appealed charging numerous trial errors. Appellant first contends that the trial court erred in not admitting the testimony of an architect called by her as an expert witness. The facts pertaining to this specific issue must be stated. At the pretrial conference on October 2, 1967, the parties were ordered to exchange the names of their- witnesses. On March 28, 1968, appellant submitted her list of witnesses and listed as her expert witness Mr. Rill Moon, a local building contractor. On the week-end before the trial, the appellant’s counsel informed counsel for appellees that she was going to use Mr. Jack Horner, an architect, as her expert witness instead of Mr. Moon, the local building contractor. The appellees objected to the substitution. Counsel for appellant informed the court that when Mr. Moon discovered that Mr. Jackson was the defendant he refused to testify. Counsel for appellees objected to a change of the expert witness from a local builder to an architect at that late date. Counsel for appellant then informed the trial court that he had known several weeks before that Mr. Moon would not testify. The trial court then ruled as follows: “It will be the Court’s ruling at this late date and with the nature of the witness, his qualifications being so much different as far as being a specialist in the field from the witness that was originally going to be called, an ordinary builder in the community, that such an endorsement of such an expert at this late date, considered in light of all the statements made here by counsel, that it will not be permitted. “. . . [T]he Court will be inclined to permit under the circumstances the use of another witness of like qualifications; that of being an ordinary builder in the community or a carpenter who has some experience in this area of home construction and duplex construction, or whatever it happens to be in this case.” Appellant did call another witness, a local contractor, who testified in her behalf. We find no prejudicial error in the trial court’s ruling under the circumstances related. The advance identification of witnesses who will testify at a trial serves a useful purpose and is a proper exercise of judicial power at a pretrial conference. (Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912.) The appellant next claims that the trial court erred in excluding plaintiff’s medical bills from evidence. The pretrial conference was held on October 2, 1967, in compliance with K. S. A. 60-216. The court directed the preparation of a pretrial order which was subsequently approved by counsel of record and the court as being reflective of the conference. The plaintiff did not disclose her medical bills then or at any time request the pretrial order be modified to admit additional exhibits until midway through trial when some were admitted over objection and other bills were testified to orally, but bills related to a Dr. Monaghan and hospitalization were denied by the trial judge. The trial judge ruled: “Objection will be sustained for the reason that these exhibits during the pre-trial were not mentioned. So their admissibility, even though they might well be material under ordinary circumstances in the presentation of the case, the Court feels where we have had the pre-trial and exhibits that you are intending to use, and questions were asked and you so stated what you were going to use, and those you didn’t have present for marking you listed and listed your X-rays; as has been elaborated by the attorney for the defendants that all parties concerned what exhibits in addition to those that were present at the pre-trial would be used and intended to be used by the various parties; at this late date to attempt to add additional exhibits in this fashion I think would be unfair and in violation of the pre-trial orders.” We have consistently held that pretrial procedure was adopted to enable courts to call parties before them and cut away by agreement or admissions all encumbrance to a speedy trial. One specific purpose of a pretrial conference is to acquaint each party in advance of trial with the respective factual contentions of the parties upon matters in dispute. In Connell v. State Highway Commission, 192 Kan. 371, 388 P. 2d 637, we state at page 375 of the opinion: “The primary purpose of pretrial procedure is to define the issues and eliminate those that are unnecessary; avoid the necessity of proof of purely formal matters that should be admitted; expedite the trial, avoid surprise; consider and identify exhibits and documentary evidence, and amend the pleadings to conform to the issues as defined. Pretrial procedure was adopted to enable courts to call the parties before them and cut away, by agreement and admission of the parties, all encumbrances to a speedy trial on simplified issues. . . .” (Emphasis supplied.) Also in Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912, we state: “The pretrial conference provided for by K. S. A. 60-216 has become an important part of our procedural process designed, among other things, to acquaint each party in advance of trial with the respective factual contentions of the parties upon matters in dispute, thus reducing the opportunity for maneuver and surprise at the trial, and enabling all parties to prepare in advance for trial. At pretrial conference the court may make any determination that will aid in the fair, orderly and efficient disposition of the action. (See Connell v. State Highway Commission, 192 Kan. 371, 388 P. 2d 637.) The matters specifically mentioned in the pretrial statute are not exclusive. . . .” (p. 519.) The appellant contends that the trial court erred in allowing appellees’ counsel to improperly attempt to refresh appellant’s recollection. The appellant was not consistent in her testimony as to her whereabouts at given times in her immediate past. She testified that she had lived at certain local addresses and had performed certain types of employment, then later acknowledged that she in reality was confined to the women’s state prisons in Lansing, Kansas and Jefferson City, Missouri, each for several years duration at the times that she was supposed to be living at the local addresses. It also appears that she had been in the women’s state prison at Maryville, Ohio, which she refused to admit. During a short recess, out of the hearing of the jury, she was allowed to look at a memorandum furnished by defendants’ counsel in an effort to refresh her recollection. Over her objection the court allowed defendants’ counsel to show appellant, in the presence of the jury, a memorandum he had prepared to show when, where and why she was in prison, in an alleged effort to refresh her recollection as to her residences and her employment. Counsel had asked her on cross-examination where she had been on a certain date. When she did not respond properly he showed her the memorandum. He did not read from the memorandum. Neither did he indicate its contents. The cross'v-examination of appellant as to her whereabouts was on a material issue, and admissible not only as to her credibility under the circumstances, but also as to her employment background and her purported loss of earnings. We find no prejudicial error in the cross-examination. The appellant contends the jury was swayed completely by passion and prejudice. We find nothing in the record to indicate passion and prejudice and the appellant in her brief has indicated nothing. The burden is always on the appellant to substantiate allegations of passion and prejudice. The appellant contends that the verdict was contrary to the evidence. There was evidence that the handrail remained attached to the wall giving support; the stairway had been used numerous times; and the handrail had been used and it was not loose; the stairway met FHA, county and city building codes, and the plaintiff herself testified that no light was necessary as the stairs were clearly visible due to broad daylight and a half-window door at the foot of the stairs. Furthermore, if the verdict was contrary to appellant’s testimony, this court cannot nullify a jury’s disbelief of evidence. It is for the jury to determine the persuasiveness of a witness’ testimony. (Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670.) Also, the burden of proof was on appellant, as plaintiff, to establish the truth of her allegations. The appellant further contends that the trial court failed to give proper instruction on the liability of the landlords to their tenant. The Rial court insRucted the jury as follows: “If at the time a tenant takes possession of leased premises the landlord knows or by the exercise of ordinary care should know of some unsafe condition in or on the premises and if that unsafe condition is not known by the tenant and is not such as would be discovered by her in the exercise of ordinary care, the landlord has a duty to disclose the unsafe condition.” The insRuction follows PIK 12.30 covering landlord’s duty as to leased premises. The instruction is also in line with what we stated in Branstetter v. Robbins, 178 Kan. 8, 283 P. 2d 455: “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 the 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. fl.) Finally, the appellant contends that there was no evidence to jusüfy an instruction on conRibutory negligence and that the trial court erred in giving such an insRuction. Without laboring the question it will suffice to state that the jury may well have believed that the appellant contributed to her fall and injury by proceeding down what she claimed to be steep stairs in bedroom slippers and robe. An examination of the record disclosses no 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 Fontron, J.: This appeal encompasses two lawsuits which were tried together and have been consolidated for hearing in this court. Both actions were filed by Lehigh, Inc. to recover balances due on five promissory notes payable in installments, two notes being executed by Nick S. Stevens and Arthur S. Stevens, doing business as Cigarette Service Company, and the other three by Nick S. Stevens, individually. The trial court entered judgment in favor of plaintiff in both cases and the defendants have appealed. Throughout this opinion the appellants will be referred to collectively as defendants, or Stevens, and the appellee as plaintiff, or Lehigh. Lehigh, Inc. is a Pennsylvania corporation engaging in the production of vending machines. In 1956, the company began to fabricate automatic coffee vending machines bearing the trade name Take-A-Break. On March 6, 1958, Nick Stevens purchased a number of the vending devices from Lehigh and in connection therewith executed a promissory note to Lehigh in the amount of $4,709.88, payable in twenty-four monthly installments. Four subsequent purchases of Take-A-Break machines were made later during the same year, all being evidenced by similar installment notes executed by de fendants and dated respectively, August 1, August 1, August 14, and August 29. The four latter notes were in the amounts of $5039.28, $1292.04, $4163.04 and $3654.12. At the time each note was executed a conditional sale contract was drawn up covering the machines involved in the specific transaction. Default in payment of the first note, which was dated March 6, 1958, occurred February 21, 1959, and defaults in payment of the remaining four notes took place throughout July and August of 1959. On March 24, 1962, suits were filed against the defendants. In answer to the petitions filed by Lehigh the defendants admitted execution of all five notes and conceded that balances were due thereon, as set out in the petitions. However, the defendants alleged that the vending machines had been misrepresented; that they were defective; and that they would not function or operate for their intended purposes. Alleging breach of both express and implied warranties, the defendants asserted they were not liable on their notes and prayed plaintiff be denied recovery thereon. By way of cross petition in each case the defendants alleged they had rescinded the sale contracts as of September 1, 1959, and were holding the vending machines for the benefit of Lehigh. Accordingly, they prayed for the return of all payments which had been made on their several notes. Both cases were tried to the court which, after an extended hearing, made extensive findings of fact which included the following: That defendants purchased approximately ninety Take-A-Break machines, all being covered by conditional sales contracts and evidenced by promissory notes; the first note was executed on or about March 6, 1958; that fifty-six of the machines were defective; that defendants were aware of the defects by at least April or May, 1958, but continued to buy additional machines until August, 1958, and continued to pay installments due on some of the notes until August, 1959; that no effective notice of breach of warranty was given to plaintiff until after suit was filed; and that the first attempt to rescind the contracts and tender back the machines was made after suit was filed. Conclusions of law were entered by the court to the following effect: That as to fifty-six of the vending machines there was a material breach of an implied warranty of fitness for the ordinary purposes for which they were to be used; that such breach was waived when defendants purchased additional machines after knowledge of the defects and continued making payments for more than a year after knowing of the defects; that rescission must be made with reasonable promptness and accompanied by an effective tender of the consideration involved; that no effective attempt to rescind the contracts was made by Stevens; and that any damages sustained by Stevens were remote, speculative and not supported by competent evidence. Pursuant to the findings and conclusions the trial court entered judgment in favor of Lehigh for the balances due on the five notes, plus interest. The defendants thereupon appealed. The points raised by defendants in this appeal are principally directed toward the trial court’s findings that no rescission had been effected and that Stevens had waived Lehigh’s breach of warranty. Before discussing these points we first note Lehigh’s position that the appeal is moot, a viewpoint not shared, we may add, by Stevens. The rationale of Lehigh’s argument is two-pronged. First it is contended that the defendants, both in their pleadings and at the trial, elected to rely on rescission, thereby precluding themselves from claiming damages for breach of warranty. Hence, Lehigh says that waiver was not in the case, despite findings of waiver made by the court. Second, Lehigh says the defendants are not now challenging the court’s conclusion that rescission had never been effected, since they have not briefed this point but have switched to the question of waiver. Accordingly, the plaintiff maintains that the trial court’s conclusion that an effective attempt to rescind was not made by Stevens, presently stands unassailed. We do not entirely agree with either diagnosis. As to the doctrine of election of remedies, it may be said in general that it precludes a party who has elected to pursue a particular remedy with full knowledge of the facts, or with means of knowing them, from later seeking to pursue a different and inconsistent remedy. (Taylor v. Robertson Petroleum Co., 156 Kan. 822, 137 P. 2d 150.) In the present case, however, the defendants, as we evaluate theirl pleadings, first asserted a claim for damages resulting from Lehigh’s breach of warranty in an amount offsetting their indebtedness on the notes and second, by cross petition, asked for rescission. Granting that a litigant may not rescind a contract for breach of warranty and in a later action seek recovery of damages for the same breach, (Christy v. Gaylord, 158 Kan. 753 150 P. 2d 164), these defendants have pleaded both remedies in the same lawsuit. In Lindsay v. Keimig, 184 Kan. 89, 334 P. 2d 326, this court was faced with a similar situation, in which the plaintiff had included two causes of action in the same petition, one being for rescission of a contract of sale, the second seeking to recover damages sustained by reason of alleged fraud in the transaction. In reversing the trial court’s order sustaining the defendant’s motion for judgment on the pleadings, this court stated: “. . . [Wjhere a party alleges two inconsistent causes of action or remedies in the same petition there is no election as to either, but while the case is pending or at the time of trial the plaintiff may be required to el'ectj between them. . . .” (p. 92.) No motion was filed by Lehigh to require defendants to make an election in this case, nor did the trial court make any order to such effect. Nor can it be said with certainty that Stevens proceeded solely on the theory of rescission during the trial, since evidence adduced as to the defective machines was equally as germane to an action for damages as to an action for rescission. And this is time despite Stevens’ failure to establish, by use of proper standards, the amount of damages sustained. Just a word concerning Lehigh’s contention that the defendants do not presently challenge the trial court’s finding that Steven made no effective attempt to rescind until after suit was filed. Inexplicably, no mention of this finding is found in Steven’s brief, nor is the subject of rescission even touched on therein. However, one of the grounds of error specified by the defendants in their statement of points is that the trial court erred in making such a finding. Moreover, rescission was frequently mentioned by defense counsel during oral argument. We cannot infer the issue was abandoned. We shall proceed to consider the points raised by the defendants. The law is clear that where there has been a breach of warranty as to the fitness of personal property, rescission is one of the remedies open to the purchaser. (Lyman v. Wederski, 95 Kan. 438, 148 Pac. 642.) However, a purchaser must exercise his right to rescind promptly and must, within a reasonable time, return or offer to return the property to the seller. The basics of this rule are stated in Brandtjen & Kluge, Inc., v. Lucas, 153 Kan. 138, 109 P. 2d 197, in these words: “The general rule with respect to personal property is that where a purchaser of a machine desires to rescind the contract by reason of a failure of warranty, he must, within a reasonable time and as a condition precedent to rescission, return or offer to return the machine; and where with knowledge of the failure he retains possession and uses the machine, he waives his right to rescind.” (Syl. ¶ 1.) Furthermore, what is a reasonable time under the confronting circumstances is a subject for determination by the trier of facts. We find this principle also set out in the Bmndtjen case on page 142, where it is said; “. . . Whether under all of the circumstances the purchaser retained possession an unreasonable time, and whether he waited too long to rescind, were questions of fact for the jury. . . .” Keeping these axioms in mind we cannot say the trial court erred in concluding there has been no effective attempt to rescind. The record is vague, at best, as to material dates. There is evidence that defendants used some fifty machines for their own purposes for some period of time, the exact length of time being undisclosed. One of Lehigh’s officers testified that in April and May, 1959, he talked by phone with Nick Stevens at which time no complaint was made of any defective machines. The only evidence we are able to find in the entire record with respect to a tender, or offer to return the machines, appears in connection with the testimony of the defendant, Nick S. Stevens. At one point in his testimony Mr. Stevens said he never tendered any of the machines purchased on August 29, 1958, (being twenty-four in number), while earlier he testified that in approximately 1959 or 1960 his attorney made a tender to plaintiff’s counsel, and he himself had verbally tendered all machines before that. The record contains a stipulation that defendants’ counsel would testify he had made a tender, but there is no evidence whatever in the record as to the date thereof. Much of Nick Stevens’ testimony as to tender may be characterized as being vague as to dates, indefinite as to occurrences, and contradictory in nature. Our rule that negative findings are seldom to be set aside on appeal appears to be peculiarly applicable to the circumstances disclosed by this record. A trial court is not obliged to give credence to testimony which, in its honest opinion, is not reliable, even though the court may not arbitrarily or capriciously ignore the testimony of any witness. (Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1; Johnson v. Stacker, 203 Kan. 253, 453 P. 2d 35.) An attempt to rescind a contract must be timely made if it is to be effective. In our opinion the evidence in this case does not com pel a finding that rescission was effectuated and the trial court did not err in its conclusion. The trial court further found that defendants waived any breach of warranty on Lehigh’s part. As to this finding the defendants first argue the court erred in considering waiver at all, since waiver had not been pleaded by Lehigh. It is true that waiver was not mentioned in plaintiff’s reply, and the defendants correctly call our attention to K. S. A. 60-208 (c) providing that waiver is an affirmative defense which must be pleaded. Our own cases also support this general proposition. However the record discloses, and defense counsel conceded on oral argument, that evidence relating to waiver was admitted during the trial without objection on the defendants’ part. This being so, we believe the trial court was justified in considering the issue of waiver and returning findings thereon. The appropriate rule is stated in Forster v. Fink, 195 Kan. 488, 493, 407 P. 2d 523, where it is stated: “A party impliedly consents to the introduction of issues not raised in the pleadings by his failure to make timely objection to the admission of evidence relating thereto (1 A Barron and Holtzoff, Federal Practice and Procedure, Conforming to Evidence, § 449).” In Bowen, Administrator v. Lewis, 198 Kan. 605, 426 P. 2d 238, this court, speaking on the same general topic, said this: “. . . The trial court has jurisdiction to decide only such issues as are raised by the pleadings or defined at the pretrial conference with the limited exception of new issues raised by evidence to which there is no objection. . . .” (Emphasis supplied.) (p. 612.) Next, the defendants argue there was no basis for the trial court’s finding of waiver, because Lehigh was constantly trying to correct defective machines and continuously assuring Stevens that the machines would be made to work. The general rule as to waiver we find to be stated in Cummings v. Sigerson, 63 Kan. 340, 65 Pac. 639, as follows: “One who purchases an article on time, under a warranty of quality of the thing purchased, and who voluntarily pays for it after discovery of its defects, cannot maintain an action to recover the payment made.” (Syl.) The Cummings opinion is in general accord with the rule set out in 77 C. J. S., Sales, § 105d, p. 807: “In connection with other matters, such as acceptance of the property, retention and use thereof, and knowledge of the grounds for rescission, payments on or of the purchase price may give rise to a waiver or estoppel on the part of the buyer; and it is fatal when made after the commencement of a suit by the buyer to rescind. . . .” It is true that waiver may not be imputed to a vendee because of payments made by him on the purchase price of defective machinery after he becomes aware of the defect, where his continued payments have been induced by promises on the part of the vendor to remedy the defects and by the vendor’s assurances that the machinery would be made to function properly. (See 77 C. J. S., supra.) However, whether payments have been so induced is a question properly to be resolved by the trier of the facts. In the present case there was evidence from which the court could well conclude that the defendants’ complaints did not extend beyond the latter part of 1958, while payments on their several notes continued well into August, 1959. There is evidence, also, that Stevens purchased additional machines several months after they became aware of imperfections. In our view the trial court’s finding that whatever breach had occurred was waived by Stevens is supported by substantial competent evidence and, under our invariable rule, may not be overturned. (See cases in 1 Hatcher’s Kansas Digest (Rev. Ed.) Appeal & Error, § 507.) An additional contention is advanced that the evidence does not support the trial court’s conclusion that whatever damages the defendants may have sustained are remote and speculative. This argument lacks merit. The measure of damages in an action based on breach of warranty is phrased in Fox v. McKay Motor Co., 188 Kan. 756, 366 P. 2d 297, in this fashion: “Generally speaking, the measure of damages for breach of a warranty is the loss directly and naturally resulting from the breach of warranty. Generally speaking, in the absence of evidence showing a greater amount of damage, the measure of damage is the difference between the value of the automobile involved at the time of delivery and the value it would have had if it had conformed to die warranty. . . .” (Syl. ]f 6.) While the purchase price of the vending machines appears in the record, no evidence is shown to have been introduced concerning the value of the machines as delivered, or the present worth of machines yet held by Stevens, which the evidence indicates still possess value. Finally, the defendants assail a finding that Unicon, Inc., a distributor for Lehigh products, and the company through which defendants placed their first order for the machines, was not an agent of Lehigh. We think the point is unimportant for two reasons: First, because the court found that Lehigh breached its warranty (no matter who made it) and second, because the record shows that whatever complaints were made to Unicon ceased many months before Stevens stopped paying their notes, and long before September 1, 1959, when Stevens alleged the contracts were rescinded. In closing this somewhat protracted opinion we wish to observe it is unfortunate that this litigation, commenced in 1962, has been so long and drawn out. The reasons for the delay are not clearly shown. We trust, however, whatever the cause or causes may be, that they will not be duplicated in subsequent cases appearing before the court. The judgment of the court below 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 robbery in the first degree pursuant to K. S. A. 21-527. Various trial errors are asserted on appeal. The evidence disclosed that Ray Emerson Meeks (defendant-appellant) robbed Douglas McNaught, the attendant at a Derby Filling station in Wichita, Kansas, located at 2014 East Central Street. At approximately 7 a. m. on December 3, 1987, the appellant arrived at the station in his automobile. He requested a scraper for his windshield which McNaught gave him. When McNaught went to wait on other cars the appellant left. Shortly thereafter, the appellant returned and came into the station where the appellant at gunpoint demanded money from McNaught. He was given approximately $115 in cash. A customer then arrived and both men went out to wait on the car. At this time the appellant had the gun in his pocket. After waiting on the customer they went back into the station where the appellant searched for a gun that he thought was located in the station. The appellant contemplated taking the attendant’s automobile, the operation of which the attendant explained to the appellant, but he decided not to because he would be picked up too easily in it. The appellant also instructed the attendant not to identify him if he saw him again. The appellant then left on foot. The police after notification took a report from the attendant, and at approximately 11 a. m. spotted a car of the description given them located outside a residence at 707 North Piatt in Wichita. Shortly thereafter a man matching the description the attendant had given emerged from the residence at 707 North Piatt. He was accosted by Officer Malone, and while sitting in the officer’s car the appellant was advised of his constitutional rights. The appellant indicated he understood his rights and that he would talk with the officer, but denied any knowledge of the robbery. Thereafter W. T. Shackelford, a detective in the Wichita police department, arrived on the scene and took the appellant in his automobile. Shackelford also advised the appellant of his rights before questioning him. The police officers then took the appellant to the scene of the robbery where the attendant identified the appellant as the one who committed the robbery. As they approached the police station the appellant stated he wished to talk to the officers, and he subsequently admitted the robbery. He then executed a waiver of search and two detectives returned to the appellant’s residence with the appellant. At the residence the appellant let the officers in the back door and took them to the basement, where he showed the officers a trunk which contained the money taken in the robbery. He also showed them the gun used in the robbery. It was recovered from the dresser drawer in the basement at the residence. The appellant contends the trial court erred in admitting into evidence his conversations, statements, confession and admissions. It is argued the foregoing evidence was obtained without a sufficient warning having been given to the appellant of his rights, and that such evidence was therefore inadmissible and could not be used against him. Objections asserted by the appellant concerning the admission of this evidence at the trial were all overruled. Police Officer Malone testified he was the officer responding to the call concerning the robbery in question, and took from his billfold a card containing the Miranda warning which he read to the appellant as follows: “You have the right to remain silent, anything you say can and will be used against you in a court of law. You have a right to talk to a lawyer and have him present with you while you are being questioned. If you cannot hire a lawyer the Court will appoint one for you. Do you understand each of these rights I have explained to you? Having these rights in mind do you wish to talk to us now?” Officer Malone said the appellant replied that he understood his rights. Detective Shackelford testified he met the appellant while in the custody of Officer Malone and took custody of him; that he read from a card in his pocket verbatim the Miranda warning, and after each statement contained therein he asked the appellant if he understood, to which the appellant responded in the affirmative. Detective Shackelford said as he and Officer Malone drove the appellant to the police station the appellant said he would tell them all about it; the appellant said, “You have been nice.” The trial judge found the full disclosure made by the appellant was voluntary, and the exhibits introduced in evidence were all voluntarily made available to the officers investigating the crime, after the appellant had properly been advised of his constitutional rights. Counsel for the appellant argues the warning to the appellant— that an attorney would be appointed by the court if he could not hire one — failed to disclose to the appellant that he was entitled to the appointment of counsel prior to questioning. He argues the obvious conclusion taken from the warning would be that, “you’re not in court now but that if we ever get to court the court will appoint you a lawyer since you cannot afford one yourself.” He relies on Gilpin v. United States, 415 F. 2d 638 (5th Cir. 1969). There the warning given advised the defendant that an attorney would be appointed for him when he went to court, but not before interrogation, and this was held to be insufficient under Miranda. The warning given by the officers here complied literally with the decision in Miranda. We think the construction placed upon the warning here given by counsel for the appellant is unwarranted, and his point lacks merit. In addition to advising one suspected of crime of his rights, the state has the burden to show that the suspect understood those rights and that he knowingly and intentionally waived his privilege against self-incrimination. The record in this case discloses the state sustained the burden cast upon it to the satisfaction of the trial court, and the evidence sustains the trial court’s finding and conclusion. Refore any statements were taken from the appellant he was warned twice of his rights strictly in accordance with the decision in Miranda v. Arizona, 384 U. S. 436,16 L. Ed. 2d 694, 86 S. Ct. 1602. The record here discloses none of the evils of custodial interrogation that Miranda delineated. The appellant was not subjected to long hours of interrogation or repeated interrogation sessions. No pressure or threats were used against him. The testimony of Detective Shackelford discloses the appellant was in full possession of his faculties, knew what his rights were, and voluntarily waived those rights. It is next contended the trial court erred in limiting the cross-examination of Detective Shackelford by counsel for the appellant. On cross-examination Detective Shackelford testified that on the way to the police station from the home of the appellant shortly after his arrest, they stopped by the Derby filling station where the robbery took place and permitted McNaught, the victim of the robbery, to observe the appellant. Counsel for the appellant thereupon attempted to cross-examine Detective Shackelford as to the method of identification attempted at that time, but the court refused to permit such examination. It is argued this action of exhibiting the appellant to the only identification witness available at a time, when he was in the custody of two police officers, in their police vehicle, was clearly a violation of the due process clause, and was the type particularly proscribed by United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951. In both Gilbert and Wade the appellants were confronted in post- indictment lineups; both had counsel at the time they were placed in the lineup for identification purposes, but the lineup was conducted without notice to and in the absence of the accused’s appointed counsel. In Wade the lineup was held some eight months after the crime had occurred, and in Gilbert the lineup occurred over two and one-half months after the crime was perpetrated and one month after the arrest. Here we are confronted with a different situation. This is an on-the-scene identification of the only suspect within four hours after the offense was committed. Our research has disclosed no United States Supreme Court decisions on the precise point. However, the federal appellate courts have been confronted with analogous situations and have drawn a distinction between an on-the-scene identification and the formal lineup identification made at a later time after indictment, as in Wade and Gilbert. In Russell v. United States, 408 F. 2d 1280 (D. C. Cir. 1969), cert. den. 395 U. S. 928, 23 L. Ed. 2d 245, 89 S. Ct. 1786, within a few minutes after the offense there was committed, a man matching the description given was found in the vicinity of the crime, and was identified as the man the witness had seen coming from the shop. There the court in its opinion reviewed the Wade and' Gilbert decisions, called attention to language in the Wade decision, and concluded: “. . . This language leaves room for modification of the Wade rule in cases involving prompt confrontations. . . .” (p. 1283.) The court in Russell distinguished Wade from the on-the-scene identification by stating: “. . . The confrontations disapproved in these cases [Wade and Gilbert] were post-indictment lineups. Similarly, though it spoke in broad terms, the Court was evidently focusing primarily on the routine lineup and show-up procedures employed by the police to obtain evidence for use at trial. The Court was concerned both to enhance the fairness of such procedures and to expose to judge and jury any elements of unfairness or unreliability which might attend them. In these typical cases, where counsel had been retained and time was not a factor it could find ‘no substantial countervailing policy considerations * * * against the requirement of the presence of counsel.’ “The present case, however, involves an immediate on-the-scene confrontation at 5 o’clock in the morning when there would necessarily be a long delay in summoning appellant’s counsel, or a substitute counsel, to observe a formal lineup. Such delay may not only cause the detention of an innocent suspect; it may also diminish the reliability of any identification obtained, thus defeating a principal purpose of the counsel requirement.” (pp. 1283, 1284.) In Bates v. United States, 405 F. 2d 1104 (D. C. Cir. 1968), Chief Justice Burger, then a circuit judge, wrote an opinion where two women were assaulted. A suspect was arrested in the vicinity and brought before them approximately thirty minutes later and identified. He had no counsel and none was present. In the opinion the policy reasons behind prompt identification were explained as follows: “. . . the police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh. . . (p. 1106.) Turning to the evidence in the case presently before us, the suspect was presented approximately three to four hours after the robbery. The victim testified the appellant came into the station around 7 o’clock in the morning on the day of the crime and asked for a scraper for the windshield of his car and then left. Shortly thereafter he returned. Upon his return to the station he pulled a gun on the attendant and the robbery commenced. The appellant was present at the station approximately half an hour, wearing no mask, conversing with the attendant at the station concerning his identification, and the victim had seen the appellant in his automobile prior to the day of the robbery. The police later located a man matching the description the victim had given coming from a residence in front of which was a car matching the description the victim had given. The suspect admitted being at the station that morning but at first denied committing any robbery. Here the time between the crime and the arrest was short; the finger of suspicion pointed to the appellant, but he denied the crime. He may or may not have been the robber. The only eye witness who could identify the appellant for sure was the victim, and time was important. Any delay in identifying the appellant would mean that, had he not been the robber, the real culprit would be at large with the trail growing cold while the appellant remained in custody. Under the circumstances we find the on-the-scene identification of the appellant did not infringe the constitutional counsel requirement. In view of the appellant’s voluntary confession and all of the evidence procured by the police officers investigating this case, resulting from the appellant’s voluntary waiver of a search warrant, the refusal of the trial court to permit appellant’s counsel to cross-examine Detective Shackelford concerning the appellant’s identification on the scene did not affect the substantial rights of the appellant to a fair trial. Identification of the appellant as the one who committed the robbery was no longer an issue in the case subject to controversy. When the trial court denied appellant’s counsel the right to further cross-examine Detective Shackelford on the point in question, the state had sustained its burden of proof concerning the appellant’s identification beyond a reasonable doubt —the appellant by his confession admitted his identity. On appeal technical errors which do not affect the substantial rights of the appellant cannot be made grounds for a reversal. (K. S. A. 62-1718.) The appellant next challenges instructions given by the trial court. Ry instruction No. 2A the trial court combined an instruction concerning the right of a defendant to refuse to testify with an instruction concerning punishment. These two instructions were stated in separate paragraphs but were given under the instruction numbered 2A. That each instruction standing by itself was a correct statement of the law is conceded by the appellant. These instructions are consistently given to the- jury in criminal proceedings. We find no merit to the argument asserted by counsel for the appellant that these instructions improperly influenced the jury. After the trial court read its written instructions to the jury, an additional instruction which had not been reduced to writing was given. The appellant had no opportunity to see this instruction prior thereto, and was not given an opportunity to object to it. The appellant argues this instruction was erroneous. While it was improper for a trial judge to give an oral instruction, as the record here discloses, without giving counsel for the appellant an opportunity to object, a study of the oral instruction given in the instant case discloses it was not technically an additional instruction, but a reiteration of previous written instructions. In the written instructions read to the jury, the members were advised to consider only the evidence presented during the trial. The court in its oral statement reminded the jurors they should not be concerned about evidence which had not been presented to the court, but that they were required to decide the case on what has been presented and not unduly speculate or decide the case on what has not been presented. In the written instructions which the trial court read to the jury, the members were told that their independent views and deliberations with the other members of the jury were to be molded and merged into the final verdict, which was to be the unanimous verdict of each and every member of the jury. In the oral statement they were told in substance it was an erroneous concept of the jury system for a juror to feel that once having made up his mind in a case he was not entitled to change it. On this point the appellant has failed to make it affirmatively appear that he has been prejudiced by the trial court in giving the oral instruction. It does not, therefore, constitute reversible error. 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The opinion of the court was delivered by O’Connor, J.: The tragedy giving rise to this appeal occurred at a railroad crossing in Ellis county when a Union Pacific Railroad train collided with an automobile occupied by Clara Engel and her husband Florian, killing them instantly. The district court rendered judgment against the railroad and the train engineer upon special verdicts returned by the jury in favor of the Engels’ heirs. The controlling question is whether or not, under the evidence, the plaintiffs may be allowed recovery under the doctrine of last clear chance. Although the case went to trial on allegations of ordinary negligence and contributory negligence of the respective parties, at the conclusion of all the evidence, plaintiffs, over objection, were permitted to amend their petition to include last clear chance as a basis for recovery. Thereupon, the trial judge proceeded to include the elements of the doctrine in his instructions, and the case was submitted to the jury. We quote two of the jury’s special findings which clearly disclose that defendants were found liable under the last clear chance doctrine: “5. Do you find that a member of defendants’ engine crew observed Florian and Clara Engel in a position of peril from which they could not extricate themselves at a time when the engine crew could, by the exercise of reasonable and ordinary care have taken action which would have avoided the collision? “Answer: Yes. “6. If you answer the foregoing question ‘yss’j then state acts or action the engine crew could have taken which would have avoided the collision. “Answer: By reducing speed.” A review of the evidence convinces us that the trial court erroneously submitted the case to the jury on last clear chance, and the resulting verdicts and judgment thereon cannot be sustained. On January 30, 1964, about 5 p. m., Clara Engel was driving a 1963 automobile west on old Highway 40. Her husband Florian was riding with her as a passenger in the front seat. About five miles west of Hays a township road running north and south connects old Highway 40 with new Highway 40, an east-west road running parallel to the old highway. The Union Pacific Railroad track, which also runs east and west, lies between the two highways and intersects the township road about 132 feet south of old Highway 40. The Engel car approached the intersection of old Highway 40 and the township road and turned south to cross the railroad track in order to reach the new highway. In making the turn, Mrs. Engel used a sweeping-type of “cutoff,” or curve in the road, which had been caused by automobiles using it as a shortcut onto the township road instead of proceeding directly to the intersection and making a sharp left turn. A car using the curve would travel a distance of approximately 150 feet from old Highway 40 to the railroad track. At the south edge of old Highway 40 was a shallow ditch which cars crossed when using the curve, or shortcut, to reach the township road. Located near the southwest corner of the intersection of old Highway 40 and the township road was a house and several old automobiles which partially obstructed a clear view of the railroad track to the west of the crossing. There was undisputed evidence, however, that an occupant of an automobile on the township road, approaching the track from the north, could see to the west, down the track, for a distance of approximately 1,000 feet upon reaching a point 73 feet north of the crossing. On the northwest corner of the crossing was an “X”-type sign which warned, in large letters, “Railroad Crossing Look Out for the Cars.” The Union Pacific passenger train, consisting of nine cars and three diesel units, approached the crossing from the west at a speed of approximately 73 miles per hour. The cab of the front power unit was occupied by the engineer and fireman, who were seated on the right and left sides, respectively. The fireman’s duty was to keep a lookout ahead. According to the fireman, he saw the Engel automobile as it was being driven west on old Highway 40; that he did not know it was going to turn until he saw it enter the curve and turn south toward the crossing. In his best judgment, the car was traveling 20 to 25 miles per hour when it was in the curve. At that time he estimated the engine was less than 1,000 feet west of the crossing; more specifically, from 300 to 400 feet. There was nothing obstructing his view of the automobile at that point, nor, in his opinion, was there anything obstructing the Engels’ view of the approaching train. He testified the engine was so close to the crossing when he noticed the automobile was going to make a left-hand turn in front of the train that “There wasn’t time to do anything about it.” He further testified that at the speeds the train and car were traveling, there was insufficient time for him to give a warning to the engineer, or for the engineer to do anything about reducing the speed of the train. The fireman also said when he observed the Engel automobile at the curve he saw the passenger facing toward the driver, and “the man did not look toward the train until just before the car went out of sight under the nose of the diesel engine.” The engineer testified that as the leading diesel unit approached the crossing, the train was running along normally, and that he first observed the Engel automobile when its front end was just north of the track. He estimated the diesel was between 120 to 400 feet west of the crossing at the time. The engineer went for the brake handle and made a “full service continuous application” of the brakes, but the damage was done “before the air ever got set.” The diesel unit struck the automobile in the center of the right side, rolling it over to the south and east of the crossing. The train traveled a little over a quarter of a mile before coming to a stop after the impact. The engineer stated he blew the whistle as the train approached the crossing. This testimony was confirmed by one of the persons residing in the nearby house who said it seemed as if “it was probably two or three seconds from the time of the whistle until I heal’d them braking.” The “bright” headlight of the leading diesel unit was also burning as the train approached the intersection. There was expert testimony by Max Smith, who was employed by another railroad company as a supervisor of air brakes, with long experience and familiarity with air braking systems on trains, and their capabilities. In his opinion, when there was “full service application,” as in this case, the time lapse from when the brake lever was moved into position until there was any effective deceleration of the train would be seven seconds; and in the case of “emergency” application, there would be no effective deceleration for a period of five to seven seconds. Added to these times would be the engineer’s reaction time, which would be approximately three-quarters of a second. In his opinion, it would take about 3,000 feet “to stop the train by going to full emergency at 72 or 73 miles per hour.” Further, he estimated even if the engine were 300 or 400 feet from the crossing when the automobile was in the middle of the tracks, “the mere shutting off of the engine power by closing the throttle would not give any sufficient retarding force to decrease the forward momentum of the train so as to avoid the collision.” Although the question of whether the driver of the automobile was contributorily negligent was not submitted to the jury as an issue of fact for determination, implicit in the jury’s answers to special verdicts Nos. 5 and 6, which found defendants liable under the last clear chance doctrine, is a finding of contributory negligence on the part of Mrs. Engel. Such finding is further reflected by the journal entry of judgment in which the court, pursuant to the special findings of the jury, found generally in favor of plaintiffs, and against defendants. (See, K. S. A. 60-249 [a]; Bott v. Wendler, 203 Kan. 212, 453 P. 2d 100.) Ry resting their right of recovery on the doctrine of last clear chance, plaintiffs concede that Mrs. Engel was negligent in operating her automobile. (Goodman v. Kansas City, M. & S. Rld. Co., 137 Kan. 508, 21 P. 2d 322, and cases cited therein.) For that matter, we are satisfied the evidence clearly discloses she was contributorily negligent as a matter of law. The duties of a driver approaching a railroad crossing are set forth in many decisions of this court and need not be elaborated in detail. The established law in this state is that a railroad track is itself a warning of danger; that the duty to exercise care in crossing railroad tracks is a continuing duty; and that a person who attempts to negotiate a railway crossing directly in front of a rapidly moving train, of which approach he is or should be aware, is guilty of contributory negligence. (See Horton v. Atchison, T. & S. F. Rly. Co., 161 Kan. 403, 168 P. 2d 928; Johnson v. Union Pacific Rld. Co., 157 Kan. 633, 143 P. 2d 630; McCune v. Thompson, 147 Kan. 57, 75 P. 2d 294; Vance v. Union Pac. Rld. Co., 133 Kan. 11, 298 Pac. 764.) Ry way of special verdict the jury specifically found that Florian Engel was contributorily negligent because of his failure to maintain a proper lookout for the driver. The failure of the trial court to set aside these findings forms the basis for plaintiffs’ cross-appeal. We find the point without merit, inasmuch as there was evidence the fireman saw the passenger with his back to the oncoming train and facing the driver as the automobile was approaching the crossing, and that the passenger did not look around and see the train bearing down until immediately before the collision. As a general rule, a passenger has a duty to exercise reasonable care for his own safety, and he is contributorily negligent if he fails to exercise such care by warning the driver of an imminent danger. (Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 320 P. 2d 1061; Ross v. Chicago, R. I. & P. Rly. Co., 165 Kan. 279, 194 P. 2d 491; PIK 8.91, Comment, and cases cited therein.) The factual situation in the present case bears analogy to that found in Buchhein v. Atchison, T. & S. F. Rly. Co., 147 Kan. 192, 75 P. 2d 280, where the passenger was found to be contributorily negligent as a matter of law. In the court’s opinion it was stated: “Notwithstanding the fact plaintiff was not driving the car, but was merely-riding therein, he was nevertheless under a duty to exercise reasonable care and precaution for his own protection. He cannot recover damages when he failed to look for an approaching train, which he could have plainly seen had he looked, and failed to warn the driver of the approaching train. (Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744; Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893; Hooker v. Missouri Pac. Rld. Co., 134 Kan. 762, 8 P. 2d 394.) “The fact is inescapable, in the instant case, that if plaintiff had looked to the west betwen the time they shifted the gears and before they reached the track, he would have seen the approaching train. Nothing obscured his vision. He could then have seen the train for a distance of not less than 1,000 to 1,200 feet. There was nothing to have prevented him from warning the driver of the imminent danger. According to his own evidence only one answer is possible. It is that he did not look and hence, of course, did not see the train nor warn the driver of the impending danger. . . .” (p. 195.) Both the driver and the passenger having been contributorily negligent, plaintiffs nevertheless contend there was sufficient evidence warranting recovery under the last clear chance doctrine. The determination of the propriety of the trial court’s action in submitting the case to the jury under the doctrine over defendants’ objection, and later rendering judgment pursuant to the special verdicts, requires that the evidence and the inferences which may be properly drawn therefrom be considered in the light most favorable to the plaintiffs. In a railroad crossing case, as in other negligence actions, a plaintiff who invokes the last clear chance doctrine has the burden of bringing the case within the doctrine. The essential elements of the doctrine are: (1) The plaintiff by his own negligence placed himself in a position of danger; (2) that the plaintiff’s negligence had ceased; (3) that the defendant seeing the plaintiff in a position of danger, or by the exercise of due care should have seen the plaintiff in such position, by exercising due care on his part had a clear chance to avoid injuring the plaintiff; (4) that the defendant failed to exercise such due care; and (5) as a result of such failure on the defendant’s part plaintiff was injured. (Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359; Ross v. Chicago, R. I. & P. Rly. Co., supra; Goodman v. Kansas City, M. & S. Rld. Co., supra.) The requirement that plaintiff’s negligence must have ceased was explained in Letcher v. Derricott, 191 Kan. 596, 383 P. 2d 533, where we said: “. . . The phrase means, and perhaps the better term is, ‘that the plaintiff had, by her own negligence, placed herself in a position of peril from which she could not extricate herself.’ If the plaintiff could extricate herself from the danger, and did not do so, her negligence had not ceased. If the plaintiff could not extricate herself from the danger, her negligence had ceased.” (p. 600.) (Also, see PIK 8.83.) In support of their position that plaintiffs could not recover under last clear chance, defendants strenuously urge the evidence dis closed the negligence of Mrs. Engel, as well as that of her husband, continued up to the very time of the collision and, therefore, the engine crew did not have a last clear chance to avoid the catastrophe. We believe their position is sound. A fundamental principle of law is that the last clear chance doctrine is inapplicable where plaintiff’s contributory negligence continues and is not shown to have ceased. As sometimes stated, there can be no recovery under the doctrine where the negligence of the parties has remained concurrent. (McElhaney v. Rouse, 197 Kan. 136, 415 P. 2d 241; Ross v. Chicago, R. I. & P. Rly. Co., supra; Buchhein v. Atchison, T. & S. F. Rly. Co., supra; Bazzell v. Atchison, T. & S. F. Rly. Co., 133 Kan. 483, 300 Pac. 1108; 4 Hatcher’s Kansas Digest, Railroads § 145.) In Buchhein, the plaintiff-passenger sought recovery for injuries sustained when the automobile in which he was riding was struck by a train at a township road crossing. He based his case on the doctrine of last clear chance. In upholding the order of the trial court sustaining a demurrer to plaintiff’s evidence, this court stated: “In the instant case plaintiff’s negligence, in failing to look and warn, did not only exist prior to entering upon the crossing but continued until the entire car was upon the crossing. He did not look until practically the last moment. In Gilbert v. Railway Co., 91 Kan. 711, 139 Pac. 380, it was said: “ ‘The plaintiff was engaged in an active disregard of his own safety up to the last moment when he might have been saved, and consequently has no standing to invoke the doctrine of last clear chance.’ (p. 718.) “Moreover, if the trial court had assumed that plaintiff’s contributory negligence had ceased, which the trial court was unable to do in view of plaintiff’s own testimony, the fact still remains that plaintiff’s evidence did not bring him under the doctrine of last clear chance. His own testimony clearly showed the car was never entrapped or in a predicament from which it could not extricate itself. The motor had not stopped, the car was not stalled, but on the contrary, notwithstanding the fact it had been raining, and the road was slightly slippery, the car picked up speed after they shifted gears. Under the evidence the doctrine of last clear chance was not applicable. (Tarter v. Missouri-K.-T. Rld. Co., 119 Kan. 365, 367, 239 Pac. 754; Jamison v. Atchison, T. & S. F. Rly. Co., 122 Kan. 305, 308, 252 Pac. 472; Bazzell v. Atchison, T. & S. F. Rly. Co., supra.)” (p. 196.) The Buchhein case was cited with approval in Ross, wherein the plaintiff had sued to recover damages for the wrongful death of her husband, which occurred in a crossing accident. She was a passenger in a truck being driven by her husband. Plaintiff’s sole contention on appeal was that the district court erred in not submitting to the jury the question of whether defendants were negligent under the last clear chance doctrine. The facts were that her husband stopped the truck 10 or 15 feet from the tracks in order to permit a freight train to pass the crossing. At that point the occupants of the truck had a clear and unobstructed view for 1,500 feet up the track on which a passenger train was approaching. Thereafter her husband proceeded to cross the tracks. After the truck was on the crossing, the driver changed to regular low gear, but found he had to change back to compound low. The truck was going approximately three miles per hour and continuing to move forward, but the passenger train struck it before it cleared the tracks. The contributory negligence of both plaintiff and the driver was conceded. The last clear chance doctrine, as applied to railroad crossing cases, was thoroughly discussed, and this court concluded the evidence was wholly insufficient to justify submission of the case to the jury under the doctrine. Although not a railroad crossing case, in McElhaney we adhered to the principle stated in Buchhein, by holding the doctrine of last clear chance inapplicable because the evidence disclosed the cross-petitioner could have extricated himself from peril prior to his injury, and his negligence had not ceased but continued to the time of the collision. His continuing negligence, we said, was at least concurrent with any negligence of the other party against whom imposition.of liability was being sought. There was evidence in the instant case that when the Engel automobile reached a point 73 feet north of the crossing, a driver or occupant had a clear and unobstructed view of the track to the west of at least 1,000 feet. The testimony of the only eyewitness (the fireman) was the Engel automobile appeared to slow down when it started to make the ten to go south toward the crossing and was traveling 20 to 25 miles per hour when it was in the curve. A highway patrolman agreed that the curve could be traversed at such a speed, whereas, if the driver used the sharp' turn at the intersection of old Highway 40 and the township road, the maximum safe speed would be 10 to 12 miles per hour. Another patrolman expressed the opinion that because of the small ditch at the curve, the maximum safe speed, either at the curve or at the regular turn, would be 10 to 12 miles per hour; however, he agreed that a car could take the curve at 20 to 25 miles per hour. The undersheriff also testified that the maximum speed across the ditch and around the curve would be about 10 miles per hour. There was no evidence that the speed of the automobile changed after it rounded the curve and approached the track. There was testimony, however, that regardless of whether the automobile was traveling 10 miles per hour or as much as 25, it could have been stopped within the 73 feet before reaching the tracks. An automobile going 10 miles per hour travels approximately 14 to 15 feet per second; at 20 miles per hour, 32 feet per second; and at 25 miles per hour, 37 feet per second. The distance from the begining of the curve from old Highway 40 to the railroad track was approximately 150 feet. If the Engel car was traveling 20 to 25 miles per hour, it would have covered the 150 feet in less than five seconds — the last 73 feet being traversed in about two seconds. The inescapable conclusion from this evidence is that had the driver been keeping a proper lookout, she could have seen the approaching train and would have been able to stop her vehicle in sufficient time to have avoided the collision. A driver about to cross a railroad track is under a duty to assure himself that he can do so safely, and that duty of so assuring himself is commensurate with the possible hazards involved. Had Mrs. Engel heeded the obvious danger and taken the ordinary precautions required of travelers approaching a railroad crossing, there would have been no collision. (Horton v. Atchison, T & S. F. Rly. Co., supra; Vance v. Union Pac. Rld. Co., supra; 4 Hatcher s Kansas Digest, Railroads § 153.) The same may be said with regard to Mr. Engel, for he, too, failed to look for the approaching train, which he could have plainly seen in sufficient time to have warned his wife of the impending danger and thereby have avoided the collision. The contributory negligence of both Mr. and Mrs. Engel continued unceasingly right up to the moment of the collision, and consequently, the doctrine of last clear chance cannot be relied on as a basis for recovery. In other words, both of them could have extricated themselves from their positions of peril by the exercise of due care, but did not do so; therefore, their negligence had not ceased. (Ross v. Chicago, R. I. & P. Rly. Co., supra; Buchhein v. Atchison, T. & S. F. Rly. Co., supra; Goodman v. Kansas City, M. & S. Rld. Co., supra; also, see, McElhaney v. Rouse, supra.) Even if we assume that the contributory negligence of Mr. and Mrs. Engel had ceased, we find no substantial evidence that time remained in which the collision could, with reasonable care, have been avoided after the train crew saw, or should have seen, the Engels in their positions of danger. The plaintiffs argue there was adequate time after the engine crew saw that the Engel vehicle was not going to stop but was going to enter the crossing at the same time as the train that they could have retarded the speed of the train sufficiently to have permitted the car to have cleared the tracks. Indeed the jury found the engine crew could have avoided the collision “by reducing speed.” In our view the finding is not supported by the evidence. There was some testimony by the fireman that when he saw the Engel car enter the curve, he “figured that it was going to be occupying the crossing at the same time that the train was going to be occupying the crossing.” This, of course, assumes the car would maintain its speed of 20 to 25 miles per hour and the driver would continue her course, oblivious to the presence of the oncoming train. As we have already pointed out, the car was in the curve when the fireman first noticed the passenger was not looking in the direction of the train. When the fireman made these observations he estimated the train was 300 to 400 (certainly less than 1,000) feet west of the crossing, traveling at approximately 73 miles per hour. At that speed the train was going 108 feet per second. If the automobile was 150 feet from the track and traveling, as the fireman said, at 20 to 25 miles per hour at the time he first thought there might be a collision, the train was more nearly 540 feet west of the crossing. Disregarding the time it would take the fireman to notify the engineer of the impending danger, we note the testimony of the braking expert: That when full emergency is applied, there is a lapse of five to seven seconds after the brake lever is moved into position before there is any effective deceleration. Added to this is the engineer’s reaction time of approximately three-quarters of a second. In this six- to eight-second interval the train would travel between 620 to 840 feet without any time lapse being considered for the fireman to notify the engineer. The Engel automobile would have already reached the crossing. Under the circumstances, there could not have been any significant reduction in the speed of the train which would have permitted the car to have safely passed over the crossing. Although the engineer testified he could have possibly seen the Engel automobile coming down old Highway 40 when the train was 1,000 feet from the crossing, he did not see the car, because he was looking at the crossing. Even had he seen the car when it was in the curve and turning south onto the township road, he had a right to assume the driver had taken note of the approaching train and would not drive in front of it. The relative rights and obligations of the train crew and travelers on the highway are fully discussed in Ross v. Chicago, R. I. & P. Rly. Co., supra. (Also, see, Vance v. Union Pac. Rld. Co., supra.) In simple terms, after the fireman realized the automobile was not going to stop, he did not have time to warn the engineer so that there could be an effective application of brakes in the time available; and further, there was no dereliction of duty on the part of the engineer whereby he could have avoided the collision. We have examined the authorities cited by plaintiffs in which a careless plaintiff has been allowed to recover under the doctrine of last clear chance when he is not incapacitated or physically helpless but merely inattentive to impending danger. They are not persuasive, in view of our prior case law and the factual situation here. Under the evidence there was insufficient time in which the train crew, in the exercise of due care, could have reduced the speed of the train and avoided striking the automobile. From what has been said, we hold that plaintiffs have failed to sustain the burden of bringing their case within the doctrine of last clear chance. The judgment of the trial court must be reversed. It is so ordered.	[ -16, 104, -44, -84, 59, 98, 42, 26, 81, -31, -91, 83, -81, -38, 5, 127, -25, 63, 117, 41, -13, -73, 23, -125, -45, -77, 49, -57, -109, -40, 102, -41, 77, 34, 74, -43, 102, 72, 69, 80, -114, 22, -70, -15, 9, -112, 48, 122, -106, 15, 113, -98, -45, 42, 24, -42, 44, 44, 91, -83, -63, 49, -93, -123, 111, 0, -93, 4, -102, -91, -40, 58, 92, 49, 24, -68, 115, -90, -45, -108, 97, -119, 8, -26, 103, 33, 21, -51, -19, -104, 14, -1, 7, -89, 30, 24, 97, 45, -105, -33, 112, 52, 14, -18, -3, 5, 93, 100, -107, -53, -76, -79, -17, 104, -110, 2, -53, -87, 50, 117, -55, 114, 95, 5, 114, 27, -33, -106 ]
The opinion of the court was delivered by Hatcher, C.: This is an appeal from a conviction and sentence in a prosecution for disturbance of the peace. The defendant, Franklin Cleveland, was charged with disturbing the peace and quiet of Jim Reynolds and other persons at the Student Union Building of Kansas State University, Manhattan, Kansas, by the use of profane and vulgar language, and rude and challenging behavior, on the 7th day of January, 1969, contra to K. S. A. 21-950. Appellant’s case was consolidated for trial with that of Andrew Rollins who had been charged with a similar offense against Michael Huston and other persons on the same occasion. A jury trial was waived and the case was tried before the judge of the district court. Both defendants were found guilty and each fined fifty dollars. Cleveland has filed a separate appeal. Michael D. Huston is a corporal in the Marine Corps and a member of officers selection team for the purpose of recruiting officers for the marines. On January 7, 1969, he was working in that capacity in the lobby of the Student Union Building of the Kansas State University. Huston was seated at a table when he was approached by Andrew Rollins and the defendant, Franklin Cleveland. They engaged Huston in conversation by asldng him questions and then interrupted his answers. In the course of the dialogue Huston was called a killer, a mercenary and a prostitute. However, that language was mild, indeed, compared to that which was spoken generally. Rollins and the defendant were about eighteen inches from Huston during the episode. The language used in this shocking dialogue is so disgusting that we will not defile the pages of our reports with a particular recital. It will suffice to state that language was directed to the desecration of motherhood of the most depraved sort. The marines, the flag and the President of the United States were referred to in dissolute, lewd and perverted language. There were about twenty young men and women in the vicinity of the recruiting table. We will present in some detail the testimony as to the demeanor of the defendant and Rollins and the affect of the dialogue on the people in the area. James Reynolds, program director, and whose duty it was to supervise the Student Union Building and maintain order, testified: “He did not mention anything to Mr. Cleveland about his remarks on January 7, 1969. His reason for not saying anything to him was because it probably would have precipated an incident in the lobby of the Union. He was aware that there were KBI people present. Yet, in view of the fact that the law enforcing officers were present he thought perhaps that this might set off an incident that would get beyond control. He does not feel qualified to make judgment as to whether the KBI agents would be able to control any incident that may occur following any confrontation that he may have made with Cleveland. . . .” Another witness testified: “Q. You’ve testified that you saw Mr. Cleveland in the area, what was Mr. Cleveland doing, if you know? “A. He was accompanying Mr. Rollins at that time. “Q. You’ve commented as to what Mr. Rollins said, would you please tell the court what you observed the general demeanor of Mr. Rollins and Mr. Cleveland to be at about 4:45, during this period of time that he was talking to the corporal? “Q. (By Mr. Innes) Could you describe for the court the actions of first Mr. Rollins at the time you first observed him upon coming into the union? “A. Mr. Rollins was arguing and — was the individual making the most conversation, the most conversation with the Marine Corps Recruiter and when the Marine Corps Recruiter would attempt to answer his questions, Mr. Rollins would interrupt him not allowing him to answer the questions. In fact at the end of the interview, he did not seem entirely rational, he appeared to be upset and in my estimation argumentative. “A. He read this article to the marine recruiter and then asked if he had— the recruiter had anything to say. When the recruiter attempted to answer his questions, the conversation was started again by Rollins and Mr. Cleveland and not allowing him the opportunity to answer any questions that was prefaced to him. “Q. And what was his demeanor if you know? “A. He appeared to be angry. “Q. He appeared to be angry, and now you mean Mr. Cleveland? “A. Yes. “Q. During the time that Mr. Cleveland and Mr. Rollins were talking to the Marine Corps recruiter, what — if you know — what was their — how loud were they talking, if you know? “A. Quite loudly. “Q. And was Corporal Huston talking in a loud manner? “A. I couldn’t hear Corporal Huston, he was talking in a very soft voice.” There was further testimony by a KBI agent, Robert Clester— “Q. Allright. And what was the reaction of the other people standing around, did — just tell the court what was their reaction at the time these two defendants were talking to the recruiter? “The Witness: Some were attentive and some were — gave the impression to me that they were offended and were moving away. “Clester noted that the people who were laughling and enjoying the dialogue between Rollins and Cleveland and Corporal Huston were a group gathered around the table with Rollins and Cleveland. Others in the area appeared to be offended and moved away upon hearing the conversation and he observed no one back in the crowd laugUing.” The appellant first contends that the dialogue between the defendant, Rollins and Huston, the marine recruiter, and the context in which the profanity was used, did not constitute the offense of disturbance of the peace within the purview of K. S. A. 21-950. That statute provides: “Every person who shall willfully disturb the peace and quiet of any person, family or neighborhood, shall upon conviction thereof be fined in a sum not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months.” “Breach of peace” or “disturbance of the peace” is a disturbance of public tranquility or order and may be created by any act which molests inhabitants in the enjoyment of peace and quiet or excites disquietude or fear. It has been said that the public peace to be protected is that invisible sense of security and tranquility so necessary to one’s comfort and which every person feels to be under the protection of the law and for which all governments are created. (See 11 C. J. S., Breach of the Peace, § 1, p. 817, and footnotes.) The court has defined “disturbance of the peace” as that term is used in K. S. A. 21-950. In State v. Hebert, 121 Kan. 329, 246 Pac. 507, we held in the syllabus: “To constitute a breach of the peace it is not necessary that actual personal violence be employed. Abusive and insulting language by one towards another, accompanied by threats of violence against such other which puts him in fear, constitutes the offense defined by R. S. 21-950.” (Syl. ¶[ 1.) However, it is not necessary that a person be put in fear to constitute a breach of peace. The use of loud and indecent language may be sufficient when public tranquility is disturbed. In State v. Appleton, 70 Kan. 217, 78 Pac. 445, we stated at page 220: “. . . One who applies vile epithets to another in a public street, in the presence of bystanders, with the intention of annoying and disturbing such person, commits a breach of the peace. . . .” Again in City of Topeka v. Heitman, 47 Kan. 739, 28 Pac. 1096, we stated on page 740: “. . . We think the complaint charges an offense under § 22. It charges a disturbance of the peace by the use of loud, profane and indecent language. The peace may have been disturbed by loud talk alone. But we also think to call a man ‘a damn fool and a bastard,’ is the use of indecent language, and the peace of the city may have been disturbed by the use of such language. The jury found the peace of the city was disturbed by the defendant.” A more general application of the statute was given in State v. Stroble, 169 Kan. 167, 217 P. 2d 1073, at page 170: “What constitutes a disturbance of the peace and quiet of a person or neighborhood, or what constitutes rude behavior or disorderly conduct, depends upon the intention of the person uttering the language, the person to whom uttered, and all the surrounding facts and circumstances. All these elements are proper issues for the trier of the facts. (City of Fort Scott v. Arbuckle, 164 Kan. 49, 187 P. 2d 348.) The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts, but acts and words likely to produce violence to others. . . .” It should be noted that the information charged the disturbance of the peace of Jim Reynolds and other persons. The information not only included Jim Reynolds, the program director for the Student Union Building, but also the marine recruiter and those who “were offended and were moving away.” We give consideration not only to the language used but the place in which it was used and where young men and women were expected to congregate. We are of the opinion that the lewd and indecent language which referred to motherhood in the most obscene and shocking manner, and the profane and perverted language addressed to the marines, the flag and the President of the United States, all in a loud voice, did disturb the feeling of security and tranquility of the young men and women in the lobby of the Student Union Building. Appellant next contends that he was in the proper exercise of his constitutional rights as provided by the First Amendment to the Constitution of the United States and the Bill of Rights of the Constitution of the State of Kansas. We would state that neither the Constitution of the United States nor the Constitution of the State of Kansas is a license to disturb the peace and tranquility of the respectable young men and women, to be found in a student union building, by the use of loud, lewd and perverted language. Appellant’s main thrust is that “the facts and circumstances are lacking any provocation of violence or disorder, and clear and present danger is not evident.” We have cited numerous Kansas cases holding that indecent language alone may constitute a breach of the peace. However, if we accept appellant’s challenge — “what circumstances, if any, presented any riotous conditions in the case at bar?” — we find no difficulty in sustaining the conviction. The program director was afraid to say anything “because it probably would have precipitated an incident in the lobby of the Union.” Students in the vicinity were moving away. The language used was quite sufficient to create an incident or a riotous condition. The defendant and Rollins could have had no intention other than to disturb the peace and tranquility of the marine recruiter and others in the vicinity. The appellant contends that— . . the court erroneously took judicial notice that the utterances were obscene per se particularly within the context that the alleged utterances were used and failing to follow the procedure as prescribed by K. S. A. 60-409 and 60-410.” The provisions of K. S. A. 60-409 (a) reads in part: “Judicial notice shall be taken without request by a party, ... of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.” Although we do not wish to imply that obscenity is a necessary element of disturbance of the peace, it matters little whether judicial knowledge was taken of the nature of the language used or whether the nature of the language used was declared obscene as a matter of law, we have no hesitancy in declaring that the language described, when considered in the light of where it was used, how it was used and those present, was obscene and indecent. Appellant contends that the institution of the charges amounted to an abuse of criminal administration to the extent of infringing on the exercise of his constitutional rights. He states: “It is shocking indeed how these two appellants were singled out to be the victims of charges and ultimately convicted of a disturbance of the peace charge for activity which squarely falls within common parlance on campus at the Kansas State University.” The evidence does not support the contention. There was no evidence that the language described herein was used by others under the facts and circumstances presented here. A careful examination of the record discloses no trial errors that would justify our disturbing the judgment of the trial court. The judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Kaul, J.: Defendant, Perry F. Guffey, appeals from a conviction of robbery in the first degree (K. S. A. 21-527). The questions presented concern various rulings and the conduct of the trial court during the course of the trial. Defendant was charged with the robbery of two Wichita grocery stores, the Red Bud Store No. 9, on January 28, 1968, and the Dillon Store on February 7, 1968, and with two counts of possession of a firearm after previous conviction of a felony. Defendant was convicted of the Dillon robbery and acquitted of the other three charges. The evidence disclosed that about 7 p. m. on January 28, 1968, two persons approached die courtesy booth of the Red Bud Store where Gary Willcutt, a store employee, was at work. Willcutt asked if he could be of service and the party, later identified as defendant, revealed a small pistol in his hand and stated to Willcutt “This is a stick-up. Turn around.” Thereafter, defendant had Willcutt open the cash register and defendant’s companion entered the courtesy booth, took the money out of the cash register, put it in a paper sack, and defendant and his companion left the store. Willcutt called the police and investigation of the robbery was immediately commenced. Around 8:30 p. m. on February 7, 1968, a robbery occurred at the Dillon Store which was perpetrated in much the same manner as in the case of the Red Bud Store robbery. The defendant and his companion approached the courtesy booth where Donald Loibl, a store employee, was on duty. The Dillon courtesy booth adjoins the express lane check out. Sidney Fox and Kathy Monte, store employees, were behind the counter on the express lane when defendant and his companion approached the employees and advised them “This is a stick-up” or “This is a hold-up” and ordered them to “Turn Around.” Fox was then ordered to open the two cash registers adjacent to the express lane; and defendant’s companion took the money from both registers, put it in a paper sack which he had in his hand, and the two left the store after directing Fox, Monte and Loibl to face the opposite direction. During the course of the Dillon robbery Rose Tucker (now Rose Knola), a customer and also an acquaintance of Kathy Monte, approached the cashier’s stand and inquired about some nylon hose which she intended to purchase. Mrs. Knola observed that a robbery was in progress, left the store by the way of the front door, and called the police. After taking the money from the cash registers, defendant and his companion left the store. The day following the Dillon robbery, officers of the Police Department showed the store employees and Mrs. Knola approximately one hundred photographs. Each witness went through the photographs at separate times and places, and each selected the same photograph as representing the defendant, who was described as the taller of the two robbers and the one who held the pistol and gave all the commands. The following day a line-up was held in the Sedgwick County Sheriff’s office. The line-up was staged in two sections consisting of six persons in each of two “show-up” lines. In the second show-up line defendant was identified as the man with the pistol by the four witnesses to the Dillon robbery and also by Mr. Willcutt of the Red Bud Store. Defendant makes no complaint concerning the arrangements for the line-up, but each witness was subjected to exhaustive cross-examination concerning identification. Defendant was arrested early the morning of February 9 by Sergeant Charles E. Stewart and Detective William Hannon, of the Wichita Police Department. After his arrest, defendant was advised by Stewart as to his rights, including his right to call a lawyer. Stewart testified that defendant answered that he understood those things. Defendant was taken to the station interviewing room where he was again advised concerning his rights by Officer William Hannon. Defendant told Stewart and William Hannon that he would like to talk to them about the charges, but he wanted to talk to Major Floyd Hannon first. Defendant was then taken to Major Hannons office where defendant when asked why he did it said “I needed the money.” According to Sergeant Stewart’s further testimony defendant said that he had thrown the gun into the river over by McLean Boulevard after the Dillon robbery; and that the gun was only a toy pistol. During the course of the trial Stewart and William Hannon were examined out of the presence of the jury, as to the voluntariness of defendant’s admissions; and the testimony of Stewart and Hannon in this regard was later received in evidence, about which defendant makes no complaint on appeal. While the details are not furnished us, it appears from the record a full preliminary hearing was held at which defendant was represented by his retained counsel and the testimony of the state’s witnesses was submitted. The trial in district court extended over four days; and from the voluminous record on appeal, it is evident the case was thoroughly tried and the defendant afforded a vigorous defense by the zealous efforts of his competent and industrious counsel. As we have indicated, the trial ended in a conviction of the Dillon Store robbery and an acquittal of the other three counts. Defendant’s counsel makes six specifications of error. However, in his brief he extends his arguments to include an attack on the trial court’s conduct of the trial at almost every stage. We shall consider defendant’s contentions as they relate to the chronological progress of the trial. The first alleged impropriety concerns orientation by the trial court of the entire jury venire prior to the docket call of the case. Defendant suggests that since he requested a complete trial transcript and no record of the court’s orientation remarks were included, then it must be assumed the orientation remarks were not recorded by the court reporter. From our examination of the record we find no mention made of this matter until defendant’s motion for a new trial, following completion of the trial. Defendant fails to demonstrate specifically how he was prejudiced, but merely asserts the remarks should have been made a part of the trial record. We are informed that it is the custom generally for judges of the Sedgwick District Court to give orientation remarks to the array of jurors prior to docket calls scheduled for the respective divisions of the court. Recognizing the desirability of some form of orientation for a new jury panel, the committee in preparing Pattern Instructions For Kansas prescribed seven instructions which might be used in orientation (PIK 1.01 to 1.07, inclusive). Whether these instructions were followed by the court in this case is, of course, not shown. If the instructions were followed it should have been noted in the record; if the orientation remarks were given extemporaneously by the court it would have been the better practice to make a record. (State v. Earsery, 199 Kan. 208, 428 P. 2d 794.) In any event, if defendant felt aggrieved his remedy was to challenge and move to quash the venire prior to trial; his failure to make any objection at this point precludes any objection after trial or on appeal. (Advance-Rumley Thresher Co. v. Schawo, 126 Kan. 563, 268 Pac. 738.) Defendant next complains concerning rules of the trial court pertaining to voir dire examination. The rules referred to deal with the scope of voir dire examination and the conduct and decorum required of counsel in conducting examination on voir dire. A time limitation of thirty minutes is established for each side. In general the rules proscribe arguing the case, establishing rapport; questioning concerning theories of law, or what verdict might be returned and given consideration. Collective questioning whenever possible is directed and counsel is warned against use of first names or familiarity. We are unable to pinpoint any specific conflict with general rules of law (47 Am. Jur. 2d, Jury, § 195, p. 785) or with our Rules Nos. 117 and 119 (Supreme Court Rules Nos. 117 and 119, 201 Kan. xxxi), pertaining respectively to courtroom decorum and local rules of district courts. We note the rules referred to are not included in the “Rules of Court for the District Court of Sedgwick County Kansas” on file with the Clerk of this Court. Our Rule No. 119 and K. S. A. 60-267 authorize, within specified limitations, the judge or judges to make rules for their respective judicial district. Neither the rule nor the statute contemplate nor authorize separate rules for each division in a multiple judge district. Lawyers and litigants should not be confronted with different rules of procedure and courtroom conduct when they go from one division to another in the same judicial district. Defendant’s complaint is a general assertion that the application of the rules in this case “prohibited a meaningful voir dire examination.” He fails to point out any instance where his right to a peremptory challenge was forfeited by application of the rules. Nor .did he request any extension of the thirty minute time limitation. Here again defendant’s complaint, so far as we are able to ascertain, was not called to the trial court’s attention until after the completion of the trial, when it was asserted by defendant in his motion for a new trial. The extent of examination of jurors on voir dire, of necessity, rests largely in the discretion of the trial court (State v. Maxwell, 151 Kan. 951, 102 P. 2d 109), and unless an abuse of discretion is clearly shown this court will not interfere. Basically, the purpose of voir dire examination is to enable parties to select jurors competent to judge and determine facts in issue without bias, prejudice or partiality. Since defendant fails to show how his rights to develop challenges for cause or to exercise peremptory challenges were infringed by application of the rules, we cannot say prejudicial error resulted. Chronologically, the next alleged abuse of discretion was the trial court’s denial of the request of defendant’s attorney to make an opening statement immediately following that of the state and prior to the commencement of the taking of evidence. In this instance defendant’s complaint was timely made. In denying defendant’s request the trial court apparently relied on what was said in State v. Moffitt, 188 Kan. 109, 360 P. 2d 886, concerning order of trial under the provisions of K. S. A. 62-1438. In Moffitt, as in the instant case, the trial court refused to allow defendant to make an opening statement immediately after the state’s opening statement. We stated the point was not specified as error on appeal but further commented: “. . . After the state had offered its evidence in support of the prosecution, defendant was allowed to make an opening statement. This was proper procedure in a criminal trial. (G. S. 1949, 62-1438, First, Second.)” (p. Ill) If the comment of this court in Moffitt is understood to be a holding that the procedure approved therein is exclusively the only proper procedure, such interpretation is mistaken. The First and Second provisions of K. S. A. 62-1438, relative to this point, read: “First. The prosecuting attorney must state the case, and offer the evidence in support of the prosecution. “Second. The defendant or his counsel may then state his defense, and offer evidence in support thereof.” The permissive verb “may” is used with reference to defendant’s opening statement. Therefore, we believe the more logical construction of the two sections together is that the order of trial in this respect is permissive rather than mandatory and within the discretion of the trial court. Defendant argues that he was prejudiced by the ruling in that his defense was alibi and that he should have been entitled to so inform the jury before it heard the testimony of the state’s witnesses. Defendant’s counsel claims that it would have been of benefit to the jury to have heard defendant’s opening statement prior to hearing the state’s evidence. The state, on the other hand, argues that it would be extremely prejudicial to the state to allow defendant to make an opening statement following the state’s opening statement and then at the close of state’s evidence refuse to put on any defense evidence and, thereby succeed, prejudicially to the state, in setting forth facts which defendant had no intention of proving. Defendant did submit evidence in his side of the trial which thwarts the thrust of the state’s argument. Even so, we believe the position stated by each of the parties demonstrates that the matter is one best resolved in the discretion of the trial court. In the case at bar, it appears the ruling stemmed from a misinterpretation of what was said in Moffitt, rather than by use of discretion. Nevertheless, we decline to hold the failure to resolve, by the use of discretion, such an inconsequential procedural matter to so prejudice substantial rights as to necessitate a new trial. We believe such pinpointing falls within the category of technical errors and irregularities with respect to the scope of appellate review as set out in K. S. A. 60-2105. Defendant next complains of the trial court’s refusal to order separation or exclusion of witnesses. Defendant first moved to separate witnesses before the state’s opening statement. No reasons in support of the motion were stated at that time. The motion was overruled; the state proceeded to make its opening statement and the state’s first witness was called and testified. At this juncture defendant, renewed his motion to separate the witnesses and stated to the court: “These are two separate counts, your Honor. This case turns on identification and the witnesses shouldn’t be able to strengthen at this time their opinions of identification as elicited by other witnesses.” The motion was again overruled. Defendant strenuously argues that this ruling amounts to reversible error. The state argues the court’s initial ruling refusing to exclude witnesses was proper because defendant’s motion was not supported by reasons. The state contends the second ruling by the court was proper even though defendant stated his reasons, because the second motion was untimely, since in the interim the state had made its opening statement and the testimony of one witness had been taken. In a few jurisdictions exclusion of proposed witnesses from the courtroom during the examination of other witnesses is a matter of right on proper application. The great majority of jurisdictions, however, follow the rule that exclusion or sequestration of witnesses is a matter not of right but of discretion on the part of the trial court. (53 Am. Jur., Trial, § 31, p. 46; 32 A. L. R. 2d, Anno. p. 358) Kansas follows the majority rule (Vols. 1-3 Hatcher’s Kansas Digest [Rev. Ed. Perm. Supp.], Criminal Law, § 121, and Vols. 4-6, Trial, § 18; Vol. 9 [Part 1] West’s Kansas Digest, Trial § 41.) We know of no Kansas case and none is cited in which a judgment was reversed on the ground of abuse of discretion by a trial court in refusing to exclude witnesses from the courtroom. Con versely, it has also been held that ordering exclusion over a party’s objection is not an abuse of discretion amounting to reversible error. (Lennon v. State, 193 Kan. 685, 396 P. 2d 290.) We hasten to say, however, that on proper application, timely made, exclusion of witnesses is generally allowed and we believe it to be the better practice. Putting aside the question whether proper application was timely made in the instant case, we shall consider die matter in the light of the record presented to ascertain whether injustice resulted. The instant trial extended over a period of four days, and we are informed on oral argument of the strong probability that no identification witness for the state was present in the courtroom during the testimony of another identification witness of the state. Such circumstance, if it be a fact, is not established by the record. We have, therefore, closely examined the testimony of the state’s witnesses to ascertain whether influencing of a subsequent witness by the testimony of a previous witness is shown. A careful reading of the testimony of the state’s witnesses relative to identification reveals nothing which affirmatively indicates that the testimony of any of them was influenced in any way by their presence in the courtroom, if such were the fact, during the taking of evidence. In other words, there is a complete absence of any showing of prejudice to defendant in this regard. While the identification of each of the state’s four witnesses was positive as to the facial recognition of the defendant; their testimony varied with respect to clothing and other features. Defendant’s counsel not only fails to point out how the testimony of any witness was affected by that of another, he recognizes variances in testimony as to descriptive details brought out by his skillful cross-examination. In his brief he described variances in testimony thus: “The identification witnesses described physical features of defendant as heavy set, with dark hair, their estimates of height ranging from a little over 5'10" to 6'3", weight from 188 to 230, and age from 25 to 33. None of the witnesses knew the color of the eyes of the robber, although one faced him at a distance of one foot. The only description of clothing worn by the robber conflicted in that witness Loibl described that the robber wore a dark blue sweat shirt, while witness Monte described that he wore a rust colored jacket with a full, white fur collar.” In McCrossen v. United States, 339 F. 2d 810 (10th Cir.), 11 A. L. R. 3d 1268, the Circuit Court of Appeals had before it the refusal of the trial court on timely motion to exclude witnesses. In meeting the issue on appellate review it said: "... A careful reading of the testimony of these witnesses reveals nothing which might indicate that the testimony of any one of them was influenced in any way by their presence in the courtroom during the taking of evidence. In other words, there is a complete absence of any showing of prejudice to appellant.” (p. 812) Defendant next complains that his cross-examination of the state’s witnesses was restricted to such an extent as to amount to reversible error. In meeting defendant’s contention in this regard, the state felt it was necessary to prepare and file a counter abstract of more than 130 pages of verbatim testimony, for the most part consisting of cross-examination by defendant’s counsel. Before delving into defendant’s contentions, we should first take note of pertinent rules governing cross-examination in this jurisdiction, and the scope of review by this court where error is claimed. The law of this state is clearly stated, and has been repeated many times, that the extent to which cross-examination of a witness may be allowed is in the sound discretion of a trial court and, unless prejudice or abuse of discretion is shown, there will be no reversal. (State v. Greenwood, 197 Kan. 676, 421 P. 2d 24; State v. Stewart, 179 Kan. 445, 296 P. 2d 1071; State v. Rowland, 172 Kan. 224, 239 P. 2d 949, 30 A. L. R. 2d 455) In discussing the function of this court in reviewing matters of discretion in State v. Wolfe, 194 Kan. 697, 401 P. 2d 917, we said: “. . . This discretion is an incident to the mode and manner of trial, and in the absence of flagrant abuse, should not be disturbed on appeal.” (p. 700.) Furthermore, it is well-established that the burden of showing prejudicial error is on an appellant and he must make alleged error affirmatively appear before a new trial is granted. (State v. Omo, 199 Kan. 167, 428 P. 2d 768; and State v. Davis, 199 Kan. 33, 427 P. 2d 606.) Error is never presumed but must be established and if susceptible of a reasonable interpretation to the contrary the record of the proceedings will not be interpreted to show error. (State v. Hess, 178 Kan. 452, 289 P. 2d 759.) Turning now to defendant’s contentions: He first complains about interruption of his cross-examination of Gary Willcutt. • Willcutt was an employee of the Red Bud Store. His testimony was offered to identify defendant as a participant in the Red Bud robbery, for which defendant was acquitted. On direct examination Willcutt described the Red Bud robbery; the appearance of the two robbers, and their manner in perpetrating the robbery. He identified defendant as the man who held the gun and pointed out defendant in the courtroom. On cross-examination Willcutt was interrogated at great length as to his version of the robbery; his description of the robbers, and the manner in which he selected defendant’s photograph from the photographs presented to him by the police. During cross-examination, concerning Willcutt’s identification of the “mug shot” and without announcing any purpose, defendant’s counsel stated to the witness: “All right. I will now read from your testimony at the preliminary hearing on page 14: starting with the third question on that page.” Defendant’s counsel proceeded to read questions and answers from the transcript of the preliminary hearing, for what appears from the record to have been a considerable length of time. He was finally interrupted by the court when the following took place: “The Court: May I interrupt. This does not seem impeachment and the record at the preliminary hearing can only be used for impeachment purposes. The defendant may call this witness for the defendant’s case-in-chief if desired. This is not cross examination subject matter raised by the defendant’s case-in-chief. It is objectionable for two reasons. Hold it for the defendant’s case-in-chief, please. If we are going to furnish transcripts for preliminary hearings we will be careful as to how they will be used — that they will be used as the law provides and not just reading what was said at the preliminary hearing. “Mr. Fisher: I will hold it but the State didn’t furnish it. “The Court: It is still immaterial. The law requires the transcript be used for impeachment purpose. This is not impeachment. “Mr. Fisher: Very well.” Obviously, the trial court did not exceed the bounds of discretion in interrupting the reading of the preliminary hearing transcript under the circumstances shown and, furthermore, it appears defendant’s counsel acquiesced in the court’s ruling rather than claiming prejudice. Defendant’s counsel proceeded with the cross-examination until he commenced interrogating Willcutt concerning the police line-up. At this point the following took place: “Ti-ie Court: And again pictures shown to him and the lineup is not part of this case-in-chief; not proper subject matter for cross examination. It should be reserved for the defendant’s case-in-chief, please. “Mr. Fisher: Very well. I only wanted to inquire about the description and the identification of this defendant.” If defendant were prejudiced by this interruption he made no such claim at the time. Defendant’s counsel was again interrupted when he attempted to interrogate Willcutt as to whether Willcutt knew a brother of defendant. The basis of the court’s interruption was that there was no direct testimony by Willcutt concerning this matter. Our examination of the record reveals the trial court was correct in its version of what was included in Willcutt’s direct testimony. Furthermore, we note the trial court observed that defendant could call the witness for his case in chief if he desired. Since no foundation for impeachment was laid and no intention announced, we believe the trial court properly interrupted the reading of preliminary hearing evidence. Nor do we find error in limiting the scope of cross-examination to matters testified about in direct examination. Evidentiary rules applicable to the examination of witnesses in criminal cases are within the ambit of the civil code. (State v. Taylor, 198 Kan. 290, 424 P. 2d 612.) Cross-examination in a criminal case is generally limited to the scope of direct examination, and any exception thereto is a matter discretionary with the court. (State v. Zeilinger, 147 Kan. 707, 78 P. 2d 845.) Defendant further complains that his cross-examination of other identification witnesses, in particular Donald Loibl and Kathy Monte, was unduly restricted. His position is not borne out by the record. The record reflects the trial court from time to time sustained objections where questions were repetitious or beyond the scope of direct examination. We do not find material error in any of these rulings. Furthermore, it should be noted that the identification witnesses, Loibl, Willcutt and Monte, were recalled for the express purpose of allowing cross-examination as to identification of photographs and matters pertaining to police lineup identifications. Generally, any error in the exclusion of evidence is cured when the same, or substantially the same, evidence is, through the same or other witnesses, subsequently admitted. (State v. Zumalt, 202 Kan. 595, Syl. ¶ 1,451P. 2d 253.) Defendant’s next complaint concerns cross-examination of police officers who investigated the robberies. Officer Liles testified on direct examination concerning his questioning of witnesses to the Dillon robbery. In his direct examination he referred to notes which he had made at the time of the investigation. The notes were contained in a small spiral notebook in which he kept notes relating to all other criminal investigations in which he was involved. When he commenced his cross-examination of Liles, defendant’s counsel requested permission of the court to have the notes to use in cross-examining the witness. Counsel’s request was overruled by the court. Putting aside for the moment whether the notes in question could have been separated from the rest of the notebook, which contained notes of other investigations, we shall consider the cross-examination of Liles. Liles was cross-examined at great length concerning his recollection of what each of the witnesses had told him in describing the appearance of the robbers. He was also cross-examined as to what appeared in his notes in this regard. Discrepancies were developed in the witnesses’ description of the clothing worn by the robbers, also to some extent as to height and weight. This testimony was mostly from recollection, rather than from notes made by Liles. He was cross-examined in great detail as to what each witness told him and during the course of such examination he was asked from time to time whether he was testifying from his notes or from his recollection. On a number of occasions during cross-examination the witness was asked what his notes reflected on the point under interrogation. The witness answered whether the subject of interrogation was covered in his notes and if so the notes in reference to the subject were read. A fair analysis of the extended cross-examination of Liles indicates that, even though counsel did not obtain physical possession of the notes, he became fully informed as to their content. Near the conclusion of his cross-examination Liles was asked: “Q. . . . your notes were not made and not entered to help you in any way in recollecting the separate conversations with the witnesses, were they? “A. No, made for immediate description to put out over the radio.” Thus, it was developed by counsel’s own cross-examination that the notes in question did not reflect specific conversations by Officer Liles with each individual witness, but rather were compiled for the purpose of establishing a composite description for radio broad cast. In other words, the notes were for the most part conclusions of the witness, rather than accounts of specific statements of each witness, and thus would not have served as a basis for cross-examination of Liles or of any of the identification witnesses. Detective William Hannon, who was in charge of the investigation of the Dillon robbery, was also examined at great length concerning his investigation and interrogation of the witnesses to the robbery. During the examination it was developed that Hannon had his notes in front of him during his testimony and that he had used his notes to refresh his memory as to time, dates and persons contacted. During the course of his cross-examination the record reflects the following took place: "Q. Officer, what you have got there in your notes is the only record you have access to that you know of now that will either confirm or contradict what these witnesses have testified about in this case, is that correct? “Mr. Hernandez: Objection. Mr. Fisher, is testifying. I wish he would proceed with the trial under the rules of evidence. “The Court: The objection is sustained. “Q. Were these personal notes of yours recorded at the time you made these various parts of your investigation, Officer Hannon? “A. Yes, sir. “Q. Would you for the purposes of the proffer hand your notes to the reporter and have them marked for identification? “Mr. Hernandez: We will object to any proffer. If he wants to have the notes concerning the direct examination admitted we have no objection, but we do object to any proffer. “The Court: Application may be made for witness’ notes. They are not demanded from the witness as a right and it is improper for counsel to ask they be marked without the Court’s permission. Please make application in the absence of the jury and I am sure there will be no difficulty. The witness may keep his notes unless he wants to voluntarily turn them over. “(By Mr. Fisher) “Q. As I understand it, according to at least your best observation, your brother Floyd Hannon was present in his office while you were gone during the time the conversation took place between Mr. Stewart and Mr. Guffey, wasn’t he? “A. I do not know whether Major Hannon was in the office all during the time that Sergeant Stewart and Mr. Guffey were there or not because I wasn’t diere. “Q. All right. “Mr. Grant: Just a moment, Mr. Fisher . . . “Mr. Fisher: For the record I asked protection from two counsel taking part in objecting to my cross-examination. “Mr. Grant: I am not making any objection. Back to the original thing you were discussing concerning the notes. We have no objection, your Honor — Mr. Hannon, if you would like to hand the reporter the notes for the purpose of marking them so that the defendant can use them, I wish you would do so. “The Court: This will please await proper application not at the moment, please. There will be no difficulty about the notes if the application is properly made. There never has been. “Mr. Fisher: Sometimes I get premature, your Honor, and I would like to apologize to counsel for the objection I made. I preconceived what his purpose was. “The Court: All right.” At Riis juncture the trial was recessed for the night, following which defendant’s counsel and the county attorney proceeded to the court’s chambers where defense counsel renewed his application to secure the notes of the police officers. The version of defendant’s counsel as to what followed is set forth in his affidavit, filed with a motion for mistrial the next morning. The affidavit in pertinent part reads: “(a) At the evening adjournment on November 13, 1968, the attorney for defendant, having announced that he had concluded cross examination of Detective William Hannon, subject to a reservation to make an application in accordance with the Court’s indication during the examination (that application should be made during recess for access to personal notes from which the detective had testified and, as counsel understood, items of property of defendant which had been taken and were being held as evidence but which evidence State did not offer.) The Court excused the witness without reservation and ordered counsel to come to chambers immediately after the adjournment. The attorney for defendant proceeded directly to the door of chambers, knocked, and was admitted, and asked Your Honor if the Court wished to see counsel. Your Honor informed me that he had changed his mind and throught (sic) the Court would work on instructions, and said that tire Court wasn’t going to permit the defense attorney to see the notes of the officer of cross-examine with them. Counsel then requested the Court to be permitted to make a record, which request the Court orally denied, stating that the record was closed. The court informed the defense attorney that if he wanted to see the notes he should ask the State for them. “The attorney for defendant proceeded toward the elevators and in the public portion of the hallway there met tire two deputy county attorneys trying the case, and after an inquiry from one of them inquired whether the State would make the notes available. During this private conversation between the attorneys, Your Honor came into the hall enroute to the elevators and approached the attorneys, and in loud tones and angry demeanor told the attorney for defendant that the attorney was mailing a mockery of the trial, that he had no right to make demands for property in official custody of the police, that the notes of the officer were his own private property, stating that the interrogation of the police officers reflected on their integrity and that the Court was not going to stand any more of it. The attorney for defendant informed the Court that the attorney had no intention to disobey any order of the court and requested only that he be permitted to make a record. Thereupon, the Court orally ordered the attorney for defendant to make no more such demands. Attorney for defendant believes that said oral order applies to the property in the custody of the state which tends to negate the issues which it is the burden of the state to prove, as well as the notes of Officer Hannon from which he testified. “Said chastisement of and oral orders to the attorney for defendant occurred a minute after 5:00 p. m.; at the commencement thereof other persons were in the area, but left during said occurrence, as defense attorney believes, in embarrassment, until only the Court and this attorney, also embarrassed— but not feeling free to leave — remained. The attorney for defendant does not know whether or not any of said persons were jurors, but certainly feels that said occurrence has made it impossible for this trial to proceed to conclusion without prejudice to a fair trial of defendant because thereof.” Defendant’s counsel argues at great length concerning matters which he has set out in his affidavit. He claims the record shows an absolute refusal of the court to allow counsel access to the officers’ investigation notes. On tibe other hand, we note counsel recites that the court, in chambers, stated to him that if he wanted to see the notes he should ask the state for them. We also note the record reflects that during courtroom proceedings, the preceding day, state’s counsel stated there was no objection to defendant’s use of the notes. Obviously, the state of the record on this point is not conducive to a very clear understanding. The record, other than in counsel’s affidavit, does not reflect any request of state’s counsel for use of the notes and state’s counsel declares that no such request was made. Generally, an opposing party or counsel has the right, on proper demand, to inspect and use for cross-examination any paper or memorandum used by a witness for the purpose of refreshing his memory upon matters testified about; but an accused has no right to the inspection or disclosure of information in possession of the prosecution which may be designed for use in the prosecution of others. (State v. Oswald, 197 Kan. 251, 417 P. 2d 261.) In the case of each officer, the notes were contained in the officer’s notebook which included notes relating to other criminal investigations. Arrangements would have been necessary to separate them from the other contents of the notebooks. In view of the exhaustive cross-examination revealed by the record, we believe defendant’s counsel, as a practical matter, was fully informed as to the content of the notes in question and thus actual physical possession of them was of no consequence. Furthermore, as we have indicated, defendant’s counsel apparently did not pursue the offer of state’s counsel to make the notes available. We do not believe counsel’s failure to secure actual physical possession of the notes, whether by reason of his own failure to fully pursue the matter or because of the import given to the trial court’s rulings, is a sufficient showing under this record to constitute prejudice of substantial rights. Defendant’s counsel directs our attention to his recitation of the court’s conduct during the hallway encounter. The affidavit was set out in defendant’s motion for mistrial, which was presented to the court the following day. Defendant contends the conduct of the court in rebuking counsel, as recited in the affidavit, is sufficient to show prejudice amounting to reversible error in the denial of defendant’s motion for mistrial. We have only defendant’s counsel’s version of the incident. The state says: “. . . The state did not at that time nor does it now believe that an affidavit in contradiction to some of the Appellant’s allegations is necessary to rebut what occurred extrajudicially, after adjournment of Court, out of the presence of the Jury, off of the record, and out of the Courtroom, could possibly have deprived the defendant of a fair trial or prejudiced his rights. It should further be pointed out that the defendant was not present also. “The Trial Court, furthermore, did not err in refusing to make a record or order as to what happened in chambers or in the hallway the night before. Court was in adjournment at that time, and the order, if any, was the same as was already reflected in the record, to-wit: defendant was not entitled to an examination of the police officers’ notes. Defendant did not at any time present to the Court any authority to the contrary.” If the court’s conduct was as recited in the affidavit of defendant’s counsel it amounted to a departure from judicial decorum, but as pointed out by the state it occurred out of the courtroom, out of presence of the jury and after adjournment and it could not have prejudiced any rights of the defendant. If a juror had been present in the hallway such fact could have easily been established by defendant. In support of his argument defendant cites the case of State v. Bean, 179 Kan. 373, 295 P. 2d 600. In Bean a judgment of the trial court was reversed because of misconduct by the court, but it was in the presence of the jury. The decision is not applicable to the instant case. Likewise, cases from other jurisdictions cited by defendant deal with a court’s remarks in the presence of the jury. Defendant makes one further contention concerning the trial court’s rulings on evidence. Baletina White was called by the state. She testified that she lived with defendant at a trailer court in Wichita and worked with him at the Chicken Acres Plant. She testified that on the way to work on the morning of February 8, 1968, around 6 or 6:30 a. m., (the morning after the Dillon robbery), defendant gave her $100.00, consisting of eight ten dollar bills and four five dollar bills. Defendant had never given her money before and she had never seen him with any sizeable sum of money except on pay day. The money in question was received in evidence over defendant’s objection and he claims error citing State v. Ragland, 170 Kan. 346, 226 P. 2d 251. Defendant’s contention is without merit. In Ragland the state’s case for burglary and larceny was based solely on circumstantial evidence. This court found error when the state sought to introduce testimony of funds in accused’s possession to serve as a basis for drawing an inference from other circumstantial evidence. The decision is not applicable here — where direct testimony establishes the money was in defendant’s possession the morning after a robbery in which he was identified by four eyewitnesses. The general rule is found in 29 Am. Jur. 2d, Evidence, § 291: “In a criminal prosecution, where there is other evidence of the guilt of the accused and the crime is of such a nature that the acquisition of money may be regarded as a natural or ordinary result of its perpetration, evidence is admissible of the sudden acquisition of money by the defendant, or of a marked improvement in his financial condition at or subsequent to the time the offense was committed, although the source of the money is not definitely traced or identified by the prosecution. . . .” (p. 337) The rule stated prevails in most jurisdictions. (See 91 A. L. R., Anno., p. 1048; and also State v. Grebe, 17 Kan. 458) Defendant complains that a record was not made of proceedings in chambers during the trial and that the court refused to have a record taken of arguments on the motion for new trial. Defendant does not contend that any part of the trial or any communication of the judge, with the exception of orientation proceedings, that took place in the presence of the jury, was not recorded. At this point, we pause to repeat an observation of this court made in the recent case of State v. Earsery, 199 Kan. 208, 428 P. 2d 794: . . For the sake of everyone concerned, litigant, counsel, trial court, and this court as well, upon appeal, every communication between judge and jury should take place in the presence of and be recorded by the official court reporter.” (p. 213) Although the better practice is to record colloquy between court and counsel pertaining to any matters of substance in connection with a trial, such procedure is not mandatory. The advantages of a complete record for purposes of appellate review are obvious and make unnecessary attempts to establish a record by affidavit, such as was resorted to in this case. The controlling statute is K. S. A. 20-903. It requires the official court reporter to attend all sessions of the court, of which he is a reporter, and to take full stenographic notes of the evidence and oral proceedings in cases tried before the court as the judge thereof shall direct. While the recording of oral arguments and other oral proceedings may be said to be tire better practice, the recording of such proceedings, in the absence of the jury, is not mandatory but discretionary with the trial judge and failure to make a record of such proceedings cannot be said to amount to reversible error. Next defendant objects to Instruction No. 6. This instruction cautioned the jury to consider only evidence which had been presented in the case and not to concern itself or speculate as to evidence it felt might have been presented and was not. The instruction further advised that a juror is not compelled to adhere to a point of view once arrived at, if he is convinced after consultation with his fellow jurors, that his previous opinion concerning law or facts was erroneous. Defendant does not support his argument with any authorities. Considering the instruction in the light of all the instructions given, we do not find it unfair or prejudicial. Lastly, defendant contends the court improperly considered a previous conviction for violation of the Federal Mann Act (18 U. S. C. A. § 2421) in enhancing the sentence imposed pursuant to the provisions of K. S. A. 21-107a. He claims the evidence insufficient to show the conviction or that the offense amounted to a felony. His contention is not supported by any argument in his brief, nor is the authenticated copy of the conviction, shown by the record to have been introduced, included in the abstract on appeal. We are, therefore, unable to consider defendant’s contention with respect to the evidence of the conviction. However, we have examined the statutes pertaining to the offense charged and find it to be a felony (18 U. S. C. A. § 1). Defendant’s industrious counsel has presented many alleged trial and procedural errors. However, he makes no contention that the evidence was insufficient, nor does he claim any infringement of constitutional rights. Defendant was positively identified as the man with the gun in the Dillon robbery by four eyewitnesses who were subjected to exhaustive cross-examination without material damage to their testimony. His own admissions, though refuted by defendant at the trial, were found to have been voluntarily made by the trial court in a proper proceeding and must have been, in part at least, accepted by the jury, because defendant’s admission as to the disposition of the gun and his description of it as a “toy pistol” appears to be the only evidence in the record which would account for the jury’s acquittal for possession of a firearm. Such evidence of guilt must be evaluated as overwhelming. Although constitutional rather than trial errors were the subject of Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, and the further discussion thereof in Harrington v. California, 395 U. S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726; we have, nevertheless, considered the admonition of those cases against giving too much emphasis to “overwhelming evidence of guilt” in the application of the harmless error rule. We have repeatedly said that every accused is entitled to one fair trial, but we have qualified that statement by further stating that a fair trial does not mean a perfect trial. While this was not a perfect trial, we are convinced from our careful examination of the total record that defendant has failed to affirmatively show prejudice of reversible weight, nor has he shown that any of the matters complained of actually contributed to his conviction. The judgment is affirmed.	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The opinion of the court was delivered by O’Connor, J.: The plaintiffs (appellants) are owners of real estate in Ford county. A portion of their land is situated in Unified School District No. 225, which has within its boundaries real estate located in Ford, Meade, and Gray counties. Pursuant to' the procedure outlined in K. S. A. 79-2005, plaintiffs protested payment of the second half of their 1967 taxes due the school district and the State of Kansas, claiming the same to be illegal and void because unequal rates of assessment of property within the same taxing unit or district were applied by the various counties. Within the statutory time plaintiffs commenced an action in Ford county district court to recover the taxes paid under protest. Plaintiffs joined as defendants in the action the officials of Ford county, the school district, and the state director of property valuation. The school district, the county clerk, and board of county commissioners filed separate motions to be dismissed as defendants for the reason they were neither indispensable, necessary, nor proper parties. Before the motions were ruled on, the district court, on its own initative, dismissed the action on the basis the court lacked jurisdiction over the subject matter under the facts alleged in the petition, citing as authority Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5. The parties agree that the question presented for our considera tion is whether or not the district court had jurisdiction under K. S. A. 79-2005 to hear and determine the matters alleged in the petition. More properly, we believe, the issue is whether or not the petition stated claims upon which relief could be granted. The petition contained three causes of action, all pertaining to the inequality and lack of uniformity in the assessment of property within the same taxing district — the school district on the one hand, and the State of Kansas on the other. Ry their first cause of action plaintiffs sought recovery of $523.73, the amount of taxes due Unified School District No. 225 by virtue of a 25.67 mill levy imposed against their Ford county property lying within the school district. In their second cause of action they sought to recover $29.42, the amount of taxes due the State of Kansas and levied on their Ford county property as the result of a statewide 1.5 mill levy. The petition alleged that the school district includes land in Ford, Gray and Meade counties, and that for the year 1967 Ford county property within the school district was assessed at 30% of justifiable value by the county assessing officials, while other like and similar property within the school district in Gray and Meade counties was assessed at 20% and 15%, respectively. Thus, application of the school district’s 25.67 mill levy to the different rates of assessment resulted in landowners in Ford county (the plaintiffs) having to pay double the amount of taxes paid by landowners in Meade county, and 50% more than those in Gray county. The petition also alleged there existed the same disparity in the valuation and assessment of property in other counties throughout the state with the same discriminatory result in respect to application of the statewide 1.5 mill levy. The first two causes of action concluded with similar allegations to the effect that since the state constitution (Art. 11, § 1) requires that all taxes be uniform with an equal rate of assessment, the act of assessing property in one part of a taxing district at a certain percentage of justifiable value, while assessing other like and similar property in another part of the same taxing district at another percentage of justifiable value, constitutes an arbitrary distinction between these taxpayers’ property and other property, all in the same taxing district, and as such, constitutes a constructive, if not an actual, fraud upon the plaintiffs, and makes the assessments illegal. In then- third cause of action, which substantially incorporated the earlier allegations of the petition, plaintiffs requested the court to enjoin the defendants from levying and collecting any further taxes for the benefit of Unified School District No. 225 and the State of Kansas under their respective levies until the existing “gross and unconstitutional inequities” were corrected and alleviated. Plaintiffs’ counsel frankly concedes he has patterned his case as closely as possible to Addington v. Board of County Commissioners, 191 Kan. 528, 382 P. 2d 315, which was followed by this court in Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117. Roth cases were instituted under the protest statute (K. S. A. 79-2005) and involved grossly unequal assessment of property within the same taxing district, namely, the county. In Addington we held the assessment of Addington’s elevator property at more than 30% of true value to be discriminatory in a constitutional sense when all other property within the same county was assessed at the median ratio of only 12% of true value. The basis of our decision was that the disparity in the rate of assessment was so arbitrary, oppressive and grossly discriminatory that it constituted constructive fraud on the rights of the taxpayer in that it destroyed uniformity and equality in the manner of fixing assessed valuation, and was, therefore, illegal. At page 532 of the opinion we find this statement: “. . . Uniformity of taxation does not permit a systematic, arbitrary or intentional valuation of the property of one or a few taxpayers at a substantially higher valuation than that placed on other property within the same taxing district; . . .” The same pattern of discrimination existed in Beardmore, where we held the assessment of plaintiffs’ oil and gas property on the basis of 30% of justifiable value, as compared to an assessment ratio of 14% for real estate by taxing officials of Hodgeman county, was so grossly discriminatory and oppressive as to amount to constructive fraud, and plaintiffs were entitled to recover the excessive taxes paid. The principles upon which these two cases are bottomed were well stated in Beardmore as follows: “The Constitution and statutes of this state make provision for uniform and equal rates of assessment and taxation of property. “Uniformity in taxation implies equality in sharing the burden of taxation, and this equality cannot exist without uniformity in the basis of assessment as well as in the rate of taxation. . . . “Mere excessiveness of assessment or errors in judgment or mistakes in making assessments will not invalidate an assessment, but inequality or lack of uniformity, if knowingly excessive or intentionally or fraudulently made, will entitle a taxpayer to relief. . . (Syl. \|¶ 1, 2 and 3.) Plaintiffs seek to bring themselves within the ambit of Addington and Beardmore by contending Unified School District No. 225 (in their first cause of action) and the state as a whole (in their second cause of action) each constitutes a taxing unit or taxing district. Thus, they say, the facts alleged in the petition presented claims upon which relief could be granted under authority of those cases. We are unable to agree. In dismissing the petition, the district court relied on our decision in Harshberger v. Board of County Commissioners, supra. While the taxpayers in that case sought injunctive relief under K. S. A. 60-907 (a), the problem presented bore striking similarity to the facts here. Plaintiffs were owners of taxable property situated in two hospital districts and five school districts located partially in Ford county and partially in other counties. The controversy arose because Ford county property was assessed at 30% of justifiable value, while property in five of the six adjacent counties was assessed at only 19% of justifiable value. Plaintiffs there, just as here, contended (1) since the state levied a 1.5 mill tax on all property subject to ad valorem taxation within the state, and many counties, including those adjoining Ford county, were not assessed at 30% of justifiable value, and (2) since the hospital districts and school districts were located partly in Ford and partly in the adjoining counties, they were being subjected to an unequal burden of taxation for the same public services. We held that the district court was without power or authority to grant the relief prayed for, namely, that defendants be enjoined from using an assessment ratio in excess of 19% of justifiable value in assessing and collecting ad valorem taxes for 1967 in Ford county. Much of what was said in the Harshberger opinion applies with equal force to the instant case. There, we made it very clear, as we have in other cases, Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982; Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791; Sebits v. Jones, 202 Kan. 435, 449 P. 2d 551; Beardmore v. Ling, supra, that the courts have limited jurisdiction in assessment matters and cannot fix the value of property for purposes of taxation. The assessment of property is administrative in character and should remain free of judicial interference in the absence of fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud. The limited scope of our jurisdiction in matters of assessment is the same, whether relief is sought by way of injunction under K. S. A. 60-907 (a) or under the tax protest statute (K. S. A. 79-2005). (See, Beardmore v. Ling, supra, and Cities Service Oil Co. v. Murphy, supra.) The remedy followed is really immaterial as to the extent to which the courts will permit themselves to be drawn into the assessment business. Under proper circumstances they are not helpless to grant relief under either 60-907 (a) or 79-2005 for inequality or lack of uniformity in assessments which have been knowingly, intentionally or fraudulently made. The taxing process of government is made up of three components — the assessment of property, the levy of the tax against the property, and tire collection thereof. (Commercial National Bank v. Board of County Commissioners, 201 Kan. 280, 440 P. 2d 634.) The assessment and valuation of property has always been considered an incident to the taxing power. It, like all matters concerning taxation, is a legislative function and exists only by virtue of statute. The legislature, as part of its constitutional duty to provide a uniform and equal rate of assessment, enacted in 1963 K. S. A. 79-1439 (since amended), requiring that from and after January 1, 1964, all real and tangible personal property subject to general property taxes be assessed uniformly and equally at 30% of justifiable value. (See, also, K. S. A. 79-501, 79-1406 [amended 1969].) We have no quarrel with plaintiffs’ broad assertion that a school district, as a subdivision of state government with power to make levies for its operation, may properly be referred to as a taxing unit or taxing district. (Sebits v. Jones, supra.) Likewise, the state as a whole may be said to comprise a taxing unit or district for the purpose of levying state general taxes. (Board of County Commissioners v. Brookover, supra.) But the power of these taxing units, or districts, extends only to the making of levies for their respective operations. School districts and the state as a whole (except for public utilities [K. S. A. 79-5a01, 79-6a01, and 79-1404]) have no assessing power or authority with respect to the valuation of property for tax purposes. By legislative fiat that responsibility is vested in the county, which is charged with the administration of all laws relating to assessment, equalization and collection of real and personal property taxes (K. S. A. 79-1411a). Each county comprises a separate assessment district, and the county assessor, or county clerk acting as assessor, has the duty of assessing all property in the county (K. S. A. 79-1411b, 79-1412a). In this case the actions of the assessing officials of Ford county are not challenged in any way. The petition on its face discloses that for the year 1967 these officials assessed plaintiffs’ property and all other property in Ford county at 30% of justifiable value, as the statutes then required (K. S. A. 79-501, 79-1406, 79-1439 [amended 1969]). The substance of plaintiffs’ complaint is that because of the ■unequal and nonuniform assessments among the various counties— principally Ford, Gray and Meade — they are being subjected to an inequitable burden of taxation on their Ford county property for taxes levied by Unified School District No. 225 and the State of Kansas. This being a protest action (K. S. A. 79-2005), the school district, while a proper party, because it is interested in the valuation to which its levy will be applied, has nothing to do with the determination of assessments and, therefore, is not a necessary or indispensable party. (Sebits v. Jones, supra.) The statute, likewise, makes no provision for including the director of property valuation, for he neither has, nor does he claim, any beneficial interest in the taxes sought to be recovered. Furthermore, he has no duty or function relative to the refund of plaintiffs’ taxes. Any refund to be made will be by the county treasurer of Ford county on the basis of the trial court’s decision. (See, Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, 428 P. 2d 804.) A protest action, by its very nature, is directed to the acts of local taxing officials in the county in which the taxes are protested, rather than officials of other counties or the state director of property valuation. Where the foundation of a taxpayer’s complaint is, as in this case, the failure of assessing officials in other counties to comply with the statute (K. S. A. 79-1439) and assess property at 30% of justifiable value, or the failure of the director of property valuation to face up to his statutory responsibility of insuring that assessment of property between different counties be uniform and equal, we hold that these matters cannot furnish the basis for granting relief in a protest action. In reaching this conclusion, we in no way suggest that relief is unavailable under K. S. A. 79-2005 where there is inequality or lack of uniformity in assessments amounting to constructive fraud within the county where the taxes are protested. (See, Beardmore v. Ling, supra; Sebits v. Jones, supra; Cities Service Oil Co. v. Murphy, supra; Addington v. Board of County Commissioners, supra.) The first and second causes of action in plaintiffs’ petition failed to state claims for which relief can be granted. The third cause of action likewise must fail. The case essentially was a statutory action under K. S. A. 79-2005 to recover the last half of 1967 taxes paid under protest. Had the petition in the first or second causes of action stated a claim for which relief could be granted, the district court would have had no power to act beyond the 1967 taxes, and no authority beyond ordering a refund of such taxes found illegal or void. (See, Cities Service Oil Co. v. Kronewitter, supra, and Shriver v. Board of County Commissioners, 189 Kan. 548, 370 P. 2d 124.) Despite the liberal joinder of claims and remedies permitted under K. S. A. [now 1969 Supp.] 60-218, we perceive no good reason for permitting the joinder of a claim for injunctive relief in a protest action. An injunction looks to the future, beyond the year for which the taxes in controversy are sought to be recovered. For that matter, the same facts alleged in the first two causes of action form the basis for plaintiffs’ request for injunctive relief. The facts having been found insufficient to warrant the court’s ordering a refund of the 1967 taxes, the third cause of action for an injunction falls of its own weight. Moreover, plaintiffs’ counsel at oral argument candidly admitted the matter has now, in all likelihood, become moot. Our decision in this case should not be interpreted as sanction by this tribunal of the serious inequities plaguing taxpayers throughout the state who find themselves in the same or similar position as the plaintiffs. The problems arise principally as the result of the failure of the responsible administrative officials to carry into effect the assessment law enacted by the legislature in 1963. Since that law was passed, taxpayers have been beset with unequal tax burdens resulting from the fact that not all counties were assessing property at the 30% rate. The constitution and the statutes demand not only equality of assessment as between property owners within a county, but also as between property owners of the state. The legislature, being specifically charged by the constitution with providing an equal rate of assessment, also has the authority to provide the means and agencies for enforcing its responsibilities. The statutes speak clearly on the subject. As we indicated earlier, the primary responsibility for assessment of real estate and tangible personal property subject to taxation rests with the county. (K.S.A. 79-1411a.) The legislature has also provided when a reappraisal of properties within a county should be made. (K.S.A. 79-1413a; Board of County Commissioners v. Brookover, supra.) More germane to the problem posed in this case are the statutory enactments designed to enforce the constitutional demand that assessments be uniform and equal in the various counties throughout the state. As already suggested in Harshberger v. Board of County Commissioners, supra, where all counties comprising a taxing unit or district are not complying with the assessment law, the state board of tax appeals sitting as the state board of equalization, has power to equalize assessments between different counties of the state. (K. S. A. 79-1409.) Of even greater importance, in our opinion, is that the legislature saw fit to vest ultimate supervisory responsibility for the administration of the assessment and tax laws of the state squarely on the director of property valuation with attending enforcement power and authority. (K.S.A. 79-1401, 79-1402, 79-1404, and 79-1405.) For example, the director has general supervision and direction over the county assessors in the performance of their duties. (K.S.A. 79-1401.) He is empowered to exercise general supervision over assessors, boards of county commissioners, county boards of equalization, and all other boards of levy and assessment, to the end that all assessments of property, real, personal, and mixed, be made relatively just and uniform and at 30% of justifiable value (L. 1963, ch. 460) [30% of fair market value (L. 1969, ch. 433)]; and to require all such officials, under penalty of forfeiture and removal from office, to assess all property of every kind and character at such value. (K. S. A. 79-1404'First.) The director is obligated to confer with, advise and direct assessors, boards of county commissioners, boards of equalization and others required under the law to make levies and assessments, in respect to their duties under the statutes. (K. S. A. 79-1404 Second.) He is empowered to direct proceedings and prosecutions to enforce laws relating to penalties, liabilities and punishment of public officials and others for failure or neglect to comply with his orders or with the provisions of the statutes governing the return, assessment and taxation of property. In addition, he has authority to cause complaints to be made against various taxing officials for their removal from office for official misconduct or neglect of duty. (K. S. A. 79-1404 Third.) In carrying out these duties, he is authorized to call for the assistance of the attorney general or county attorneys in their respective counties. (K.S.A. 79-1404 Fourth.) In addition, the director is empowered to require any county board of equalization to make such orders as the director of property valuation shall determine are just and necessary, and to direct such boards to raise or lower the valuation of any property, real or personal; and generally to do or perform any act or to make any order or direction to any county board of equalization or any local assessor as to the valuation of any property which, in the judgment of said director, seems just and necessary, to the end that all property shall be valued and assessed in the same manner and to the same extent as any and all other property, real or personal, required to be listed for taxation. (K.S.A. 79-1404 Sixteenth.) Other powers and duties of the director my also be found in Chapter 79, Article 14 of K. S. A. We further note that a penal statute (K. S. A. 79-1426) has been inserted by the legislature making it unlawful for any assessing officer, including the director of property valuation, whose duty it is to list, value, assess or equalize real estate or tangible personal property for taxation, to willfully or knowingly fail to appraise, assess or to equalize the values of any real estate or tangible personal property subject to general property taxes as required by K. S. A. 79-1439. The penalty for violation of this statute includes forfeiture of office. These clearly defined official duties of the director of property valuation leave no doubt that he has full power and authority to enforce the assessment laws promulgated by the legislature and to insure that all property subject to tax is assessed uniformly and equally. Had plaintiffs pursued a proper remedy, their grievance is one which the director could have been compelled to alleviate by the exercise of the power and authority conferred upon him by the legislature. Unfortunately, they chose to proceed by the protest route. The judgment of the district court is affirmed.	[ -42, -18, -16, 108, -118, -32, 50, -116, 73, -77, 37, 83, 109, -53, 4, 127, 114, 61, 1, 105, 71, -73, 83, -61, -80, -78, -39, 93, -69, 79, -12, -42, 76, -79, -54, 85, 6, -30, -59, 92, -114, 6, -120, 86, -39, 2, 60, 105, 122, 11, 49, 47, -13, 44, 28, -61, 72, 44, 91, -85, 1, -15, -86, -105, 95, 3, 49, 52, -98, -61, -56, -86, -104, 57, 2, -24, -69, -90, -58, 116, 1, -119, -119, -84, 102, 17, -68, -49, -4, -104, 46, 85, -115, 102, -109, 88, 115, -116, -106, -100, 116, 82, 15, 126, -26, 5, 31, 124, -114, -22, -122, -109, -115, 48, 3, 3, -17, -128, 48, 113, -53, -10, 94, 71, 26, -69, 94, -4 ]
The opinion of the court was delivered by Fromme, J.: The defendant, Wesley Turner, appeals from a judgment determining that he is the father of two year old Jeffrey Brent McGregor. His attack on the judgment is jurisdictional in nature. He claims the trial court improperly amended or changed the original claim for breach of promise to a claim on the paternity of an illegitimate child. Aleta McGregor, mother of the child, filed an action for breach of promise to marry against the defendant, Wesley Turner. It was alleged in the petition that she incurred expenses for the birth of defendant’s child and that defendant refused to support the child. Defendant by answer denied the promise of marriage and paternity o£ her child. A pre-trial order was journalized and approved by the attorneys. Included in the issues of fact to be determined at the trial were: (1) Was a promise of marriage made by the defendant and if so, did defendant breach said promise? (2) Is defendant the natural father of Jeffry Brent McGregor and if so, what amount of support and expenses should be paid by defendant? The plaintiff requested a jury trial. When all the evidence was in the defendant moved for a directed verdict because of insufficiency of the evidence to establish the promise of marriage. After extended argument on the motion the court stated: “Well, not being fully informed on the various legal aspects of this case, I did some homework this noon and looked at the Digest on the subject in a general way. I find defendant’s motion is good insofar as the Breach of Promise action is concerned. The motion will be sustained, based upon the reasons indicated, which includes lack of consideration and lack of definiteness to form a contract and failure of sufficient proof upon which the jury may base damages. “This leaves in the lawsuit the question of paternity and support. The Digest mentioned one decision in particular and that said paternity and support in a situation such as this may not be merged with a Breach of Promise action, but I don’t know what the law is generally. . . .” Over objection by the defendant the court submitted the paternity and support questions to the jury. The jury found defendant was the father of Jeffrey Brent McGregor and determined the amount of support at $80 per month. The court entered judgment on these findings against the defendant. The claim for breach of promise had been previously dismissed for insufficiency of the evidence. The final judgment against the defendant was limited to paternity, medical expenses and support. A motion for new trial was filed and during arguments thereon it was discovered that Jeffrey Brent McGregor was not a party to the action. The action had been filed by Aleta McGregor, the mother, for breach of promise of marriage. The court at that time directed plaintiff’s counsel to include Jeffrey Brent McGregor as an additional party plaintiff in the case. The following colloquy between the court and defendant’s counsel preceded the order to include the child as a party plaintiff: “The Court: Why hasn’t the father eomplained sooner? “Mr. Beaty: This went to trial as a Breach of Contract of marriage . . . “The Court: Well, that is what it is labeled. “Mr. Beaty: The way it is pleaded I don’t think the father has had the right to . . . “The Court: Well, we have merged pretrial orders and pleadings and somebody on behalf of the father agreed that the support case and custody should be heard. “Mr. Beaty: Stipulated those facts were in issue; didn’t stipulate the case could be amended. “The Court: I didn’t say you did. I said it was stipulated that the paternity action could be heard and so it came to trial. It was a two-headed case by stipulation of the parties. What is the complaint? He agreed to have the issue determined.” We will first consider defendant’s contention that the plaintiff's claim for breach of promise could not be amended during the trial to a claim on paternity. Later we will examine the propriety of making the child an additional party plaintiff after the judgment had been entered. Can a claim for breach of promise be joined with a filiation proceeding to establish paternity of an illegitimate child? If these two claims cannot be joined in one action it would be error to permit a claim for breach of promise to be amended during trial so as to continue the action as a paternity claim after the breach of promise claim was dismissed. The provisions of the code of civil procedure, which allow amendments and supplemental pleadings (K. S. A. 1969 Supp. 60-215), joinder of multiple claims (K. S. A. 1969 Supp. 60-218) and joinder of multiple parties (K. S. A. 1969 Supp. 60-219 and 60-220), have liberalized the former rules of practice in order to secure just, speedy and inexpensive determination of actions within the rules prescribed. Under the law as it existed prior to the code a misjoinder of causes of action occurred when multiple plaintiffs filed suit on separate claims arising out of the same transaction or occurrence if any plaintiff was not interested in the relief sought by the other plaintiffs. (See Crisler v. C. K. Packing Co., 181 Kan. 118, 309 P. 2d 703 and Fields v. Anderson Cattle Co., 193 Kan. 558, 396 P. 2d 276.) A departure from the former practice rules is indicated in the statute and it is no longer necessary for each plaintiff to file a separate action when the claims arise out of the same transaction. (See Gard, Kansas Code of Civil Procedure § 60-218, pp. 96, 97.) K. S. A. 60-220 (a) (now 1969 Supp.) reads: “Permissive joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.” Under K. S. A. 60-220 (a) (now 1969 Supp.) claims of separate parties must arise out of the same transaction, occurrence or series of transactions or occurrences before they may be joined in one action. We are concerned in the present case with two claims, one for breach of promise of marriage and the other to establish paternity. A claim for breach of promise of marriage is a chose in action of the woman who has been jilted. The claim in such case arises out of the promise of marriage which is the occurrence or transaction giving rise to the claim. In Dalrymple v. Green, 88 Kan. 673, 129 Pac. 1145; Bowes v. Sly, 96 Kan. 388, 152 Pac. 17, and Smith v. Hawkins, 120 Kan. 518, 243 Pac. 1018, the court points out that sexual intercourse and pregnancy, occurring after a promise of marriage, arise from a separate and distinct occurrence. The sexual intercourse and pregnancy can form no part of the occurrence upon which a promise of marriage is based. Sexual intercourse and pregnancy may be proven and considered in the breach of promise action but only in aggravation of the damages which would otherwise flow from the breach of promise. It has been stated repeatedly that neither the pregnancy nor the sickness resulting from the pregnancy can be proximately caused by a breach of promise of marriage. Pregnancy, and any sickness which results, are proximately caused by a separate and distinct occurrence, sexual intercourse. In Kansas we recognize two distinct proceedings to establish the paternity of an illegitimate child. One is statutory and the other arises from the public policy of this state which requires a father, to support his child. The statutory proceeding is set forth in K. S. A. 62-2301, et. seq. The statutes provide a specific method for establishing the paternity of a bastard child and requiring the father to support and educate said child. A judgment for support may be enforced, under the statute by requiring security. The father may be imprisoned for any failure to comply with the judgment. K. S. A. 62-2303 provides the action shall be prosecuted in the name of the State of Kansas, on the relation of the prosecuting witness. The unmarried woman who has been delivered of or is pregnant with a bastard child is the prosecuting witness. (K. S. A. 62-2301) We have held the proceeding must be prosecuted by the mother of the child. (State v. Jehlik, 66 Kan. 301, 71 Pac. 572.) The nature of this statutory proceeding and the history of the act are discussed in State, ex rel., v. Pinkerton, 185 Kan. 68, 340 P. 2d 393. This method of establishing paternity was not used in the present case. The other type of action to establish paternity of an illegitimate child in Kansas is a non-statutory filiation proceeding. It is based upon a father s obligation to support the child. The action and the fathers obligation to support the child rest in the public policy of this state as expressed in Doughty v. Engler, 112 Kan. 583, 211 Pac. 619. Although the proceeding has been commonly referred to as a common law paternity action, this is a misnomer. The common law did not recognize a father s duty to support an illegitimate child. (See Doughty v. Engler, supra.) Because of the child’s age and incapacity this non-statutory filiation proceeding must be brought by the child through its mother, guardian or next friend. In Myers v. Anderson, 145 Kan. 775, 67 P. 2d 542 it was held: “The right of the child to support from its father is a chose in action which belongs to the child.” (Syl. ¶ 2) It was further held in Myers that the mother was without authority to settle or compromise the child’s right to bring a non-statutory filiation proceeding. An agreement by the mother to accept $1000 and release the putative father from further liability to her and the child did not prevent the mother as next friend from later prosecuting an action on behalf of her child. The chose in action belonged to the child. The child was not bound by the mother’s agreement. This type of proceeding was discussed in Grayson v. Grayson, 182 Kan. 285, 320 P. 2d 803, where the Doughty and Myers cases were cited and approved. The non-statutory filiation proceeding, as recognized in the foregoing cases, arises by reason of sexual intercourse between a man and woman. The right to relief in such a preceding does not arise out of any promise of marriage. Therefore, a woman’s claim based upon a breach of promise of marriage may not be joined in one action with a child’s non-statutory filiation claim. K. S. A. 60-220 (a) which provides for permissive joinder does not authorize the joinder of claims arising from separate and distinct occurrences. If two claims cannot be joined in one action it is error during a trial to convert the original claim (breach of promise) into a claim arising out of a separate occurrence (sexual intercourse). In addition it was reversible error to attempt to bind the child on his separate chose in action after judgment was entered on the first claim. A judgment between two parties in an action must bind both parties if it is to be a valid and binding judgment. In the present case the child would not have been bound if the jury had determined Wesley Turner was not the father of Aleta McGregor’s child. The mother cannot bind the child by her separate action. (See Myers v. Andersen, supra.) A mother cannot compromise or settle the child’s paternity claim by agreement with the putative father, and she cannot compromise or settle the child’s claim by attempting to litigate the questions in her breach of promise action. The paternity claim which the court attempted to determine was a chose in action belonging to the child. This claim cannot be adjudicated without the child as a party. The doctrine of res judicata, whereby a judgment bars subsequent action on the same cause of action and renders the judgment conclusive on the issues adjudicated, applies only to parties to the action in which the judgment was rendered, and their privies. (Adamson v. Hill, 202 Kan. 482, 449 P. 2d 536.) The rule that a plea of res judicata may be asserted only by a person who was a party or in privity with a party to the prior action is based on the doctrine of mutuality of estoppel; that is, a litigant can invoke the conclusive effect of a prior judgment only if he would have been bound by it had it gone the other way. (Adamson v. Hill, supra; Goetz v. Board of Trustes, 203 Kan. 340, 454 P. 2d 481.) Res judicata cannot be raised against a person as to matters decided in an action prior to the time that person is made a party to the action or enters his appearance. (National Bank v. Kopplin, 1 Kan. App. 599, 42 Pac. 263.) K. S. A. 60-219 (b) sets forth what should be done in making a person an additional party to an action. This statute was not com plied with by the plaintiff. The attempted entry of appearance by the mother on behalf of the child came too late. It was after judgment. No question is raised on appeal concerning the propriety of dismissing the mother’s claim for breach of promise and that judgment is now final. The district court was without jurisdiction to render a binding judgment on the paternity of Jeffrey Brent McGregor. Jeffrey Brent McGregor and his mother are free to pursue the question of the paternity of Jeffrey Brent McGregor by whatever action the laws of Kansas permit. The judgment establishing paternity is reversed. Fatzer, J.; dissents.	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The opinion of the court was delivered by Fontron, J.: Highwood Service, Inc., hereafter referred to as defendant or Highwood, is a Michigan corporation which owns and operates television station KTSB, which is located in Topeka and broadcasts on channel 27 (UHF). By a letter dated April 24, 1969, Highwood advised the Attorney General of Kansas that it intended to and would, in the immediate future, initiate a program with the title “Dialing for Dollars.” Closely following receipt of this letter, the attorney general, acting on behalf of the state of Kansas, commenced this action alleging that the program as outlined by Highwood constituted a lottery, and seeking to enjoin Highwood from broadcasting or exhibiting the same. After a hearing the trial court found, in effect, that the scheme or operation proposed by Highwood was not a lottery within the meaning of K. S. A. 21-1501. Accordingly, judgment was entered for the defendant. The state has appealed. Rriefly stated, the plan proposed operates in this fashion: The white pages of telephone directories from this general area are cut into segments of twenty names each and then placed in a rotating cage. One of those slips is drawn at random when the program goes on the air. From the names on die slip so drawn, one name is selected and a phone call is placed to that person. The person called is asked what the code number is (which will be either “up” or “down” and a number from 1 to 10) and what amount is in the “jackpot.” If he has been watching the program he should know the answers, but even though he knows them not, he may hazard a guess and should his responses be correct he still will have “hit the jackpot.” Should he be so unfortunate as to venture wrong answers, the answerer nonetheless is rewarded with a consolation prize of $1.00. If the person called is not reached for any reason, a prize of $1.00 is sent to him. This scheme, which Highwood admits is aimed at increasing the viewing audience to the enhancement of its advertising revenues, is viewed askance by the state as being a lottery in violation both of article 15, § 3 of the Kansas Constitution and of K. S. A. 21-1501. Highwood indignantly denies such an accusation, and thus the issue is joined. Article 15, § 3 of the state constitution reads as follows: “Lotteries and tire sale of lottery tickets are forever prohibited.” So far as material herein, K. S. A. 21-1501 prohibits the making, establishment or promotion of any lottery, gift enterprise, policy or scheme in the nature of a lottery. A companion statute, K. S. A. 21-1506, defines lottery in this language. “The term ‘lottery,’ as used in this act, includes schemes for the distribution of money or property among persons who have given or agreed to give a valu able consideration for the chance, whether called a lottery, raffle, or gift enterprise, or by some other name.” The court has held that the essential elements of a lottery are three: (1) Consideration, (2) prize, and (3) chance. (State, ex rel., v. Bissing, 178 Kan. 111, 283 P. 2d 418.) The defendant concedes, in the case now before us, that two of these elements, i. e., prize and chance, are present in its Dialing for Dollars program, but it asserts that the element of consideration is lacking. Hence the field of disagreement between the state and the defendant is narrowed to the single issue of consideration. With respect to this point, the trial court, in a well prepared memorandum opinion, sagely observed: “The question then to the Court is whether any financial gain that would or could be derived by the defendant by having a greater viewing audience is the 'valuable consideration,’ or by inducing the participant to view a certain television station, consideration, as the third element in a lottery, has been fulfilled. “No doubt some financial benefit would inure to the defendant by having a larger viewing audience but is this the consideration contemplated by the statute? This Court thinks not. “Without going into a lengthy discourse on the history of lotterys, a gratuitous distribution of money by lot or chance is not within the purview of our lottery statute where no valuable consideration is derived or exacted from the participant receiving a chance to win a prize.” We believe the trial court spoke well and truthfully. K. S. A. 21-1501 does not, itself, define the character or the quantum of the consideration needed to constitute a lottery. Neither does its companion statute, K. S. A. 21-1506, set forth what consideration is required to create a lottery other than that it must be a “valuable” consideration, flowing from the participants. What does, and what does not, provide the consideration necessary to the operation of a lottery has been the subject of much judicial verbiage to which, at this time, we shall not add materially. It is sufficient here to observe that, in our opinion, the bounds of reason would be exceeded were we to say that the requirement of consideration has been fully met whenever a TV fan turns the dial of his machine to Dialing for Dollars and then relaxes in his easy chair awaiting the call which he hopes will bring him fortune. Our view in this regard finds respectable support in F. C. C. v. American Broadcasting Co., 347 U. S. 284, 98 L. Ed. 699 74 S. Ct. 593. This case involved the interpretation of § 1304 of the United States Criminal Code prohibiting the broadcasting of “any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance . . .” The program under challenge bore the title “Stop the Music”, a give-away program similar to Dialing for Dollars, except that home contestants were asked to identify the musical selection which had just been played. If a correct answer was received, a prize was awarded the fortunate participant; if not, a consolation prize of lessor worth would be his sole reward. In holding that this scheme did not offend the federal statute, the United States Supreme Court said: “. . . The courts have defined consideration in various ways, but so far as we are aware none has ever held that a contestant’s listening at home to a radio or television program satisfies the consideration requirement. . . . “We believe it would be stretching the statute to the breaking point to give it an interpretation that would make such programs a crime. . . .” (pp. 293, 294.) We are aware, not only of the foreign authorities cited by the state in which give-away programs have been held to violate lottery laws, but also of our own decision in State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P. 2d 929, where a “bank night” plan was held to constitute a lottery in violation of 21-1501. In each of the several cases, however, the offending scheme required an overt act of participation on the part of a contestant such as making a purchase, visiting the sponsors place of business or the filling in and mailing of a coupon. The Fox “bank night” case is representative. There, a contestant was required to register by placing a form containing his name and number in a registration register located near the theater entrance or exit and the winner was required to present himself within a reasonable time at the theater in order to claim his prize, i. e., a sum of money on deposit with a bank. A contestant was not obligated, however, to buy a theater ticket in order to register nor was the winner required to be in the theater when the drawing was held. In deciding that the “bank night” plan constituted a lottery within the prohibition of the statute, this court stated that: “. . . [T]he indirect benefit derived by the defendant under the ‘bank night’ plan in the way of increased gross receipts from paid admissions, as set out in paragraph 10 of the answer, [which conceded that the plan was designed to increase gross receipts from paid admissions on bank nights and other nights, and that it had had such effect] is sufficient consideration coming directly or indirectly from those entitled to the chances generally to meet the requirements as to that necessary element in a policy or scheme of drawing in the nature of a lottery. . . .” (p. 700.) We believe the “bank night” plan with which this court came to grips in State, ex rel., v. Fox Kansas Theatre Co., supra, is distinguishable from the Dialing for Dollars program proposed by Highwood. Hence, our decision in that case is not controlling here. At this point it may be pertinent to observe that K. S. A. 1969 Supp. 21-4302 (3), which forms a part of the new Criminal Code effective as of July 1, 1970, expressly provides that “listening to or watching radio and television programs; answering the telephone or making a telephone call and acts of like nature are not consideration” within the meaning of the statutes defining a lottery. The state properly points out, however, that the present action is predicated not only on the statutory prohibition against lotteries found in K. S. A. 21-1501, but on the constitutional interdiction set out in article 15, § 3 of the constitution, as well. The state further asserts that the constitutional provision is self-executing, i. e., effective without the need of ancillary legislation. (See Blacks Law Dictionary, Fourth Edition, p. 1525, and cases cited therein.) With this appraisal we have no quarrel. In Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P. 2d 456, this court said: “It is a settled rule of constitutional construction that prohibitive and restrictive constitutional provisions are self-executing and may be enforced by the courts independent of any legislative action, unless it appears from the language of the provision that the enactment of legislation is contemplated as a requisite to give it effect. The foregoing principle has been recognized in Woockworth v. Bowles, 61 Kan. 569, 60 Pac. 331; and State, ex rel., v. Mercantile Association, 45 Kan. 351, 25 Pac. 984; see, also, State, ex rel., v. Deck, 106 Kan. 518, 188 Pac. 238; 16 C. J. S., Constitutional Law, § 49; and 11 Am. Jur., Constitutional Law, §§ 71 to 77.” (p. 18.) But while the constitutional ban against lotteries may be self-executing, it is not self-defining. That function is judicial in nature, devolving upon the courts. We have heretofore had occasion to lay down general guidelines for its exercise. In Higgins v. Cardinal Manufacturing Co., supra, we observed that a constitution is not to be narrowly or technically construed but its language “should be held to mean what the words imply to the common understanding of men” (p. 18); that in ascertaining the meaning of constitutional provisions courts should consider what appears to have been the intendment and understanding of the people at their adoption. (See, also, State v. Sessions, 84 Kan. 856, 115 Pac. 641.) Our limited research has brought to light no lay or legal dictionary of an 1859 vintage, the year the Kansas Constitution was adopted by the Wyandotte Convention. However, in Abbott’s Law Dictionary, published in 1879, (a not too distant era) we have found this definition of a lottery: “A scheme for the distribution of prizes by chance, among buyers of the chances. “Such schemes were formerly very common, were anthorized by law, and were even set on foot, in many instances, by the authorities, for raising revenue for public or benevolent purposes. In view of the ill eSects of the element of gambling involved, they are now very generally made unlawful.” Foremost among the citations appended to the text, the author has placed the following: “A lottery is a distribution of prizes by chance or lot, where a valuable consideration is given for the chance of drawing a prize. United States v. Olney, 1 Abb. U. S. 275.” (1868.) Relying on the Abbott text, we feel justified in assuming that the common conception of a lottery about or near the time of the adoption of article 15, § 3; was much the same as it was in 1895, when the legislature enacted K. S. A. 21-1506 requiring the consideration from lottery participants to be “valuable.” Webster’s Third New International Dictionary, unabridged, (1964) conveys much the same idea as it defines lottery: “a scheme for the distribution of prizes by lot or chance; esp.: a scheme by which prizes are distributed to the winners among those persons who have paid for a chance to win them, usu. as determined by the numbers on tickets as drawn at random (as from a lottery wheel).” To similar effect, see Oxford Illustrated Dictionary (1962) and The Random House Dictionary of the English Language, The Unabridged Edition (1967). In short, we entertain the opinion that not only in 1859, when the constitution was adopted, and in 1895, when K. S. A. 21-1506 was enacted, but in recent years as well, the common understanding of a lottery entertained by men in general has been that a consideration of value must flow from those who participate. We gravely doubt that had the ordinary man in the streets in 1859 been able to envision the advent of television he would have characterized as a lottery the give-away program known as Dialing for Dollars. Nor, in our judgment, would he have felt, any more than his great-grandson would feel today, that in viewing the program in his own home, and at his own leisure and comfort, he was paying a valuable consideration for his entertainment. The conclusion we have reached makes it unnecessary for us to consider the question of federal preemption raised by the defendant. The judgment of the court below is affirmed.	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The opinion of the court was delivered by Kaul, J.: Plaintiff-appellant brought this action on his written contract of employment as a teacher against defendants-appellees. Defendants, pursuant to K. S. A. 60-212 (b), [now 1969 Supp.], filed a motion to dismiss the action on the ground that the petition failed to state a claim upon which relief could be granted. The motion was sustained and this appeal ensued. In his petition plaintiff alleged that on March 19, 1968, defendants, acting through their superintendent, delivered to plaintiff a contract for the school year 1968-1969 and a letter of transmittal signed by Wm. E. Lockhard, Superintendent. That shortly after receipt of the two documents, plaintiff contacted the superintendent and advised him that he would not teach any courses other than those which were listed by the superintendent in his letter of transmittal. Plaintiff further alleged that he was assured by the superintendent that the courses listed in the letter would constitute his teaching assignment for the ensuing year. Plaintiff further alleged that after the commencement of the school year he was informed by the superintendent, acting for defendants, that he would be required to teach an eighth grade class in English, which was not listed in the superintendent’s letter. Plaintiff refused and on December 6, 1968, was advised in writing by the president of defendant board of education that he was discharged from his teaching position because his refusal of the assignment constituted a breach of contract. The superintendent’s letter to plaintiff, the contract, and the letter of dismissal were attached to the plaintiíFs petition as exhibits. In his brief on appeal, plaintiff contends the failure to state the courses, which plaintiff would be required to teach, on certain blank lines in the contract results in a patent ambiguity or an unexplained omission in the contract which requires explanation by parol evidence. Apparently, the contract was written on a standard form provided for teachers’ contracts. The portion with which we are concerned provides that the teacher is employed— “. . . to perform the following services in conformity with Kansas law and the policies of the board; “To teach all days when school is regularly scheduled; “To make and file all reports required by the board or superintendent; “To attend professional meetings authorized by the board or superintendent; “To cooperate with the administrators and other teachers in planning and coordinating the teaching program; “To perform such school services as may be mutually agreed upon by the board and teacher and listed herein.” Following this listing of the teachers’ obligations there appears two blank lines on the contract form. Nothing was written on the two blank lines, which were followed by salary terms and this provision: “The board reserves the right to assign said teacher to such building and work as the best interest of the schools of the district require.” As previously noted, the contract, when delivered to plaintiff, was enclosed with a letter from the superintendent, addressed to plaintiff, which reads in pertinent part as follows: “It is not possible to determine exactly all class assignments for the coming year. However, I will do my absolute best to keep as close to the listed courses as possible. The big variable in the whole thing is who comes back and who doesn’t. The main object in assignments is to place you in your major field as much as possible, and not in an area you are not qualified or comfortable in unless it is an emergency. I am thinking of your students as much as you, because you will do a better job in an area you are qualified to teach. “It looks to me at this time that you will be assigned the following classes: “1. Special shop “2. Senior shop “3. Junior shop “4. Sophomore shop “5. Mechanical drawing or its equivalent “6. Study hall “You would also have sponsorship of classes, etc., that are normally assigned to teachers in a high school. “Feel free to indicate on the sign up sheet on the office bulletin board when you could meet with me for any questions or discussions. If I get tied up, I will make an extra effort to meet with you at a mutually agreeable time. “Sincerely yours, “/s/ Wm. E. Lockhart, Superintendent” The position taken by plaintiff, as we understand it from his brief, is that the two blank lines in tire contract create an ambiguity, or indicate an omission; that the teaching assignments stated in the superintendent’s letter should have been inserted in the blank lines; and that he should be allowed to supply the omission by parol testimony. Plaintiff cites decisions of this court to the effect that parol evidence is admissible to supply an omission in a written contract such as in Gibbs v. Erbert, 198 Kan. 403, 424 P. 2d 276, where it was held: “Where a written contract is incomplete or silent in some essential point incident thereto, parol evidence is admissible to aid in its construction or to show the complete agreement of the parties of which the writing is only a part.” (Syl. f3.) As an abstract principle of law, the correctness of the rule cited by plaintiff must be conceded, but it is inapplicable with respect to the instant contract. Given the most favorable interpretation, the plaintiff’s petition and attached exhibits fail to show any ambiguity or omission. Plaintiff executed the contract after receiving the superintendent’s letter and his alleged subsequent conversation with the superintendent. The defendant board expressly reserved the right to assign the teacher in the contract provision: “The board reserves the right to assign said teacher to such building and work as the best interest of the schools of the district require.” The pleadings and exhibits clearly show that negotiations culminated in the contract executed. While parole evidence may be relied upon to clarify an ambiguity it may not be used to nullify a clear and positive provision of the writing, such as plaintiff attempts by way of the alleged understanding with the superintendent. An applicable statement is found in Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P. 2d 803: “. . . If a written contract is actually ambiguous concerning a specific matter in the agreement, facts and circumstances existing prior to and contemporaneously with its execution are competent to clarify the intent and purpose of the contract in that regard, but not for the purpose of varying and nullifying its clear and positive provisions, (citing cases).” (p. 496.) Plaintiff’s attempt to alter the contract by inserting his alleged oral understanding with the superintendent, as to the assigned subject, would have the effect of directly nullifying the provision of the contract by which the board expressly reserved the right to assign teachers “as the best interest of the schools of the district require.” The contract is complete on its face. The teacher is obliged to teach all days when school is regularly scheduled. The fact that the two lines following the obligation “To perform such school services as may be mutually agreed upon” were left blank merely indicates that there were no additional school services mutually agreed upon. Even if the assignments, listed in the superintendent’s letter, were inserted in the two blank lines, as plaintiff urges, the contract, nevertheless, would remain the same because of the board’s expressly reserved right to assign appearing in the following provision. Moreover, the cautious commitments, with respect to assignments, by the superintendent in his letter are entirely consistent with the board’s reservation in the contract of the right to make teaching assignments. Regardless of whatever oral negotiations plaintiff may have had with the superintendent, the written agreement subsequently entered into constitutes the contract between plaintiff and defendant and determines their rights. In Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441, it was said: “No doctrine is better established or more frequently applied than the one that where parties have carried on negotiations, and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights, (citing cases.)” (p.789.) Plaintiff contends that defendants’ motion should not have been sustained at such an early stage in the litigation. He argues that he should have been permitted to show that there existed an oral agreement relative to the courses to be taught by him. As we have previously noted, plaintiff’s petition, given the most favorable interpretation, established no basis for the admission of parol evidence in this case. The parol evidence rule is not a rule of evidence, but of substantive law. Its applicability is for the court to determine, and when the result is reached, it is a conclusion of substantive law. (In re Estate of Goff, 191 Kan. 17, 379 P. 2d 225; Phipps v. Union Stock Yards Nat’l Bank, 140 Kan. 193, 34 P. 2d 561.) In an action on a written contract it is the duty of the court to examine the contract sued upon and determine in the first instance whether an ambiguity appears, which function is performed by the application of pertinent rules of interpretation to the face of the instrument. Ambiguity does not appear until the application of those rules to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning (Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139.) When a motion to dismiss under K. S. A. 60-212 (b) (6), [now 1969 Supp.], raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff’s petition. The motion in such case may be treated as the modem equivalent of a demurrer. (Gardner v. McDowell, 202 Kan. 705, 451 P. 2d 501; Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347.) In the instant case, the facts pleaded clearly fail to show a breach of contract. In order to establish his dismissal, as a breach of the contract, plaintiff would first have to alter the written contract by inserting the alleged oral understanding which would in effect nullify a clear and definite provision of the contract. This, as a matter of law, plaintiff is not permitted to do. Since no competent evidence could have been offered to show that the board agreed not to exercise an expressly reserved right, no breach of contract could have been established. Therefore, the trial court correctly sustained defendants’ motion to dismiss. The judgment is affirmed.	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This opinion of the court was delivered by Fromme, J.: The primary question on appeal relates to the sufficiency of process under K. S. A. 60-308 (the long-arm statute) to support a personal judgment against The Chase Manhattan Bank of New York, as garnishee. The Chase Manhattan Bank is a national banking association organized under the provisions of 12 U. S. C § 21 et seq. with its office and principal place of businesss in the city and state of New York. For jurisdictional purposes a national bank is a citizen of the state in which it is established or located. (28 U. S. C. §1348.) Therefore, as garnishee in this case The Chase Manhattan Bank must be considered a nonresident corporation. The events leading to the personal judgment against The Chase Manhattan Bank are as follows: Land Manufacturing, Inc. recovered a default judgment in the district court of Sedgwick county, Kansas, against the original defendants, The Highland Park State Bank and Plastics of San Antonio, Inc. This judgment was entered as a result of a breach of a contract which obligated the two principal defendants. A year after the judgment was entered garnishment procedings were instituted against The Chase Manhattan Bank, garnishee, based upon the judgment. Service of process on the garnishee was obtained in the state of New York as provided in K. S. A. 60-308. The order of garnishment directed the garnishee to answer within 20 days from the date of service. The garnishee failed to answer within the time limited. The district court in Sedgwick county entered a personal judgment against this nonresident banking corporation in the amount of $23,856 as garnishee. Four months later the garnishee appeared specially by its attorneys and moved the Sedgwick district court to vacate this judgment. It contended the court lacked jurisdiction in this case to render a personal judgment against this nonresident garnishee predicated on service outside the state of Kansas under K. S. A. 60-308. In support of said motion the garnishee filed an affidavit by James P. Power, assistant staff counsel of the garnishee bank. Service was originally made on Mr. Power in New York. His affidavit states: “That The Chase Manhattan Bank did not transact any business within the State of Kansas which in any way relates to the cause of action between said plaintiff and principal defendants, The Highland Park State Bank and Plastics of San Antonio, Inc., in said litigation nor did said cause of action between said plaintiff and said principal defendants arise from the doing of any acts by The Chase Manhattan Bank.” No affidavit was filed or evidence introduced by appellee. During oral argument on the motion it was disclosed The Highland Park State Bank of San Antonio, Texas, one of the original judgment debtors, had on deposit in The Chase Manhattan Bank in New York the sum of $17,428.88. (The judgment was lowered to that amount.) The appellee argued generally that The Chase Manhattan Bank had representatives designated to handle its affairs in Kansas and that it was engaged in the banking business through its corresponding banks. During the colloquy between court and counsel the court stated that in its opinion The Chase Manhattan Bank was transacting business in the state when it was served with the garnishment and that it would so hold. Counsel for the gamishee-bank responded to the court’s statement by saying that he couldn’t argue with the court’s statement. The appellee argues this response of counsel for the garnishee-bank constitutes an admission against interest which has the effect of waiving the garnishee-bank’s right to question jurisdiction. We cannot agree. The bank filed no pleading in the case except the motion attacking the jurisdiction of the court. The sufficiency and effect of service of process under K. S. A. 60-308 depends upon more than a general admission of transacting business. The provisions of that statute will be examined later. In order to determine the sufficiency of the service in this case it is necessary to understand the nature and purpose of attachment and garnishment proceedings in general. A proceeding in garnishment is a means of attachment by which the moneys, credits or effects of a debtor may be reached in the hands of another person. Garnishment is either (1) a form of or an aid to attachment, or (2) in lieu of or in aid of execution. (K. S. A. 60-714.) A basis for jurisdiction in attachments and garnishments may arise from the location of the moneys, credits or effects within the jurisdiction of the court. In such case service of process may be by constructive service as provided in K. S. A. 1969 Supp. 60-307 (a) (2) to-wit: “(a) When permissible. Service may be made either by mail where the address is known, or by publication in any of the following cases: “(2) In actions brought against a nonresident of the state or a foreign corporation having in this state property or debts owing to him sought to be taken by any of provisional remedies or to be appropriated in any way.” (Emphasis supplied.) See also Searing v. Benton, 41 Kan. 758, 21 Pac. 800; Freeman v. Keltner, 175 Kan. 37, 259 P. 2d 228; Standard Steel Works v. Crutcher-Rolfs-Cummings, Inc., 176 Kan. 121, 269 P. 2d 402 and Cadwallader v. Lehman, 202 Kan. 738, 451 P. 2d 163. Methods of serving process on foreign corporations are generally cumulative. (Kaw Valley Produce Co. v. Railways Ice & Service Co., 176 Kan. 312,269 P. 2d 1038.) If the tangible property attached or garnished is located within this state other methods of constructive service such as K. S. A. 60-308 may be employed to notify the owner or holder thereof. (Cadwallader v. Lehman, supra.) However, in the present case the monies or credits were not located or attached in Kansas. A second basis for obtaining jurisdiction to reach monies, credits or debts owing to a judgment-debtor may arise from personal service of process on the garnishee within the state. The court thereby acquires jurisdiction over him and can garnish the debt due from him to the debtor of the plaintiff and condemn it. Situs of the debt is of little importance in such case. (Harris v. Balk, 198 U. S. 215, 49 L. Ed. 1023, 25 S. Ct. 625; 38 C. J. S. Garnishment §125.) The foregoing rules governing attachment and garnishment proceedings are summarized in 6 Am. Jur. 2d, Attachment and Garnishment § 19, p. 574 as follows: “It is a fundamental rule, at least with respect to tangible property, that in attachment or garnishment proceedings the res must be within the jurisdiction of the court issuing the process, either actually or constructively. Property outside the state cannot be attached or garnished, even though the court has personal jurisdiction over the garnishee. In the case of foreign attachment or garnishment proceedings against a nonresident defendant, the existence of property within the jurisdiction of the court is essential. However, as a general rule, a credit owed to a nonresident may be reached by garnishment if personal service can be made upon the garnishee, and where the property of a nonresident is within the jurisdiction of the court it is subject to attachment or garnishment.” With these basic principles in mind we turn to the question presented in the present case. No tangible property was located or attached in Kansas in this case. Therefore, the validity of the personal judgment against this nonresident garnishee must depend upon whether service upon The Chase Manhattan Rank had the force and effect of personal service of summons upon it within the state of Kansas. K. S. A. 60-308 in pertinent part provides: “(a) Proof and effect. (1) Personal service of summons may be made upon any party outside the state. If upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of personal service of summons within this state; otherwise it shall have the force and effect of service by publication. “(b) Submiting 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 said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts: “(1) The transaction of any business within this state; “Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in this subsection (b) of this section, may be made by personally serving the summons upon the defendant outside this state, as provided in subsection (a) of this section, with the same force and effect as though summons had been personally served within this state, but only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this paragraph.” (Emphasis supplied.) We have previously considered this statute in Woodring v. Hall, 200 Kan. 597, 438 P. 2d 135; Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P. 2d 128 and in White v. Goldthwaite, 204 Kan. 83, 460 P. 2d 578. In White v. Goldthwaite, supra, we said: “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 consúmate 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, considering 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.” (Syl. f 3.) The second basic factor listed in White, and clearly specified in K. S. A. 60-308, should be noted. If process under K. S. A. 60-308 (b) (1) is to have the effect of personal service the claim for relief must arise from, or be connected with, the act or transaction by which the nonresident submitted to the jurisdiction of the court. Assuming The Chase Manhattan Bank was transacting business in Kansas through corresponding banks there was no showing in this case that the claim for relief arose from such transaction of business with corresponding banks. On the contrary the journal entry of judgment in the original case indicates the action arose from a contract between the other parties. The Chase Manhattan Bank had nothing to do with the obligations imposed by that contract. The affidavit of Mr. Power submitted in support of the motion to vacate remains uncontroverted. A party invoking the jurisdiction of a particular court for a particular remedy has the burden of proving the existence of that jurisdiction. (White v. Goldthwaite, supra.) This the appellee failed to do. There was no attempt by the appellee to establish that the claim for relief arose from any transaction of business by the garnishee within this state. The personal judgment against the garnishee based upon service under K. S. A. 60-308 must be vacated and set aside. Such service had only the effect of service by publi cation and will not support a personal judgment against this nonresident garnishee. The appellee contends that the holding set out above will eliminate all garnishment proceedings against nonresident garnishees and seriously restrict the jurisdiction of our courts. We do not agree. Our process statutes relating to personal service upon nonresident corporations are in no way affected by our construction of K. S. A. 60-308 in this case. Personal service of process may be served on a foreign corporation by service on the registered agent of such corporation. Whenever any foreign corporation authorized to transact business or transacting business without authority in this state shall fail to appoint or maintain in this state a registered agent upon whom service of legal process may be had then the secretary of state may accept process as the agent of such foreign corporation. [K. S. A. 1969 Supp. 60-304 (/).] Our statute, K. S. A. 17-506, sets forth what constitutes doing business within the state. K. S. A. 17-504 provides for the venue of actions against foreign corporations doing business within the state and sets forth an additional method of obtaining personal service of process on foreign corporations. The cases cited by appellee in which foreign corporations have been subjected to the process of garnishment in the past were decided long before K. S. A. 60-308 was enacted into law. Service of process was effected in those cases under the “doing business statute” which is now K. S. A. 17-504 or under former statutes similar to K. S. A. 1969 Supp. 60-304 (/). Those statutes continue to be available for personal service of garnishment process on foreign corporations transacting business or doing business within the state. Other points raised by appellant are not determinative of this appeal and need not be discussed. The garnishee, The Chase Manhattan Bank, is discharged and the judgment against it is reversed. Fatzer, J., concurs in the result.	[ -112, -52, -8, 28, 12, 96, 50, -102, 88, -15, 37, -45, -31, -54, 21, 123, -29, 63, -12, 113, -61, -73, -121, 65, -46, 50, -47, -51, -80, 95, -28, -34, 76, -80, 106, -107, 70, -126, -61, -100, -114, 14, 9, -24, -7, 74, 48, -21, 82, 2, -15, -84, -13, 60, 27, -30, 104, 41, -21, -83, -63, -39, -85, -59, 127, 20, 3, 5, -108, 39, -56, -66, -112, -71, 1, -24, 112, -106, -58, -12, 43, -37, 105, 118, 98, 2, 17, -51, -4, -115, 15, -42, 15, -25, -111, 120, 107, 47, -106, -99, 108, 6, -121, -4, -18, 5, 27, -20, -125, -50, -10, -125, -113, 119, 26, 11, -17, -125, 48, 113, -50, 34, 92, 22, 120, 11, -98, -103 ]
The opinion of the court was delivered by Lockett, J.: This is a wrongful death action arising out of a December 1987 motor vehicle/pedestrian accident in which plaintiff Lois E. Sterba’s son, Scott A. Beecham, was struck and killed by a pickup driven by defendant Tommy L. Jay, an employee of defendant W.B. Carter Construction Company (Carter). Beecham was employed as a street maintenance worker for the City of Wichita. On December 22, 1987, Beecham and a fellow worker, Michael Keeling, were “cold patching” potholes on K-42 highway. Keeling was driving a city dump truck, using six yellow flashers, two located on top of the truck and four on the rear of the truck, as warning devices while they were cold patching. The dump truck had just stopped in the curb lane of the four-lane highway a few feet in front of the area to be cold patched. Beecham exited the right side of the truck and proceeded to the back of the truck to begin cold patching. He was wearing an orange caution jacket and a green helmet. Where the cold patching was to be done, K-42 is a divided four-lane highway with a 50 mph speed limit. Approximately 8 to 20 seconds later the pickup Jay was driving for Carter struck and killed Beecham and then collided with the city dump truck. An investigating officer testified that there were 14 feet of ghost skid marks left by the pickup prior to striking Beecham, who was standing approximately 18 feet behind and facing the dump truck. Ghost skid marks occur when brakes stop a tire, causing the tire to clear debris on the road surface prior to the time when the tire heats sufficiently to lay down skid marks. The impact of the pickup colliding with the dump truck moved the dump truck, which was not in gear, approximately 20 feet forward. Keeling told the investigating officers there was no other vehicle in the area when Beecham was struck by the pickup. At the hospital, Jay told the investigating officers he was traveling about 35 to 40 mph when the dump truck stopped in front of him. Jay later told the officers that another truck stopped in front of him, causing him to move into the curb lane where he hit the dump truck. The case was tried twice. At the conclusion of the evidence at the first trial, Carter requested an instruction on K.S.A. 8-1531(a), and Sterba requested an instruction based on K.S.A. 8-1531(a) and (b). The trial judge refused to give either of the requested instructions. The jury compared the fault of the decedent, the City of Wichita, and Jay. The jury attributed 5% fault to Beecham, 30% fault to the City of Wichita, and 65% fault to defendant Jay and awarded damages totalling $52,781.81. Sterba filed a motion for a new trial, claiming the trial court erred (1) in refusing to instruct the jury on K.S.A. 8-1531(a) and (b) and (2) in allowing the jury to compare Beecham’s negligence. The trial court ruled (1) it had erred by failing to instruct the jury on K.S.A. 8-1531(b) and (2) the jury should not have compared decedent’s fault because there was no evidence of negligence by the decedent. It granted plaintiffs motion for new trial but limited the new trial to the issue of liability. Most of the evidence introduced during the second trial was similar to that of the first trial. Robert L. Loveland, street maintenance supervisor for the City of Wichita, testified that the 1985 Manual on Uniform Traffic Control Devices (MUTCD) was in effect at the time of the accident. He stated Part VI of the MUTCD, entitled “Work Zone Traffic Control Standards and Guidelines,” was used by the street maintenance department for safety guidelines. Loveland said that the guidelines were used on any job performed by street maintenance workers. Loveland described the operation the decedent was involved in as mobile operations. During cross-examination he was asked to read to the jury the mobile operations section under the Work Zone Traffic Control Standards and Guidelines found in the MUTCD, which on its face required traffic-control devices, such as vehicles with flashing lights, to be used with mobile operations. Loveland stated it was not mandatory that the Work Zone Traffic Control Standards and Guidelines found in the MUTCD be followed while the work was being performed on K-42. In addition, a bad winter storm required the use of 16-20 crews to cold patch city streets. Because of the storm, there were not enough second or “shadow” vehicles, which follow the city road repair trucks to help alert approaching motorists, for use by all of the street crews. After all the evidence had been submitted, the trial court sustained Sterba’s motion for directed verdict, ruling there was no evidence that decedent or Keeling was negligent. Sterba then moved for a directed verdict, claiming there was no evidence that the City of Wichita was negligent. The court took the motion for directed verdict on the negligence of the City of Wichita under advisement and submitted the case to the jury. The jury instructions included an instruction based on K.S.A. 8-1531(b). The jury returned a verdict finding the defendants 60% at fault and the City of Wichita 40% at fault. After the verdict, Sterba again moved for a directed verdict, claiming the defendants had failed to show the City was negligent. The trial court questioned whether Loveland was an expert and whether the defendants were required to present expert testimony as to whether the City of Wichita was negligent. The defense argued that the MUTCD had the force and effect of law and that the jurors as drivers could understand the provisions contained in the Work Zone Traffic Control Standards and Guidelines without expert testimony. The district judge subsequently granted the plaintiff’s motion, determining that the defendants failed to submit expert testimony regarding the City’s duty under the MUTCD to properly protect its worker. The district court entered judgment for $52,781.81 against the defendants, the amount of damages determined by the jury at the first trial. The defendants now appeal the district court’s order setting aside the liability portion of the jury’s verdict in the first trial and granting a new trial on this issue. Defendants also appeal the trial court’s finding at the second trial that the defendants were required to produce expert testimony to establish a standard of care by the City of Wichita. Sterba cross-appeals claiming that the trial court erred in not granting a new trial, after the first trial, on the issue of damages. She requests a new trial if the second verdict is not affirmed by this court. Carter first contends the trial court erroneously determined it had failed to give an instruction on K.S.A. 8-1531(b) and improperly granted a new trial. A new trial may be granted to all or any of the parties on all or part of the issues when it appears that the rights of the parties are substantially affected. The grounds for granting a new trial pursuant to K.S.A. 60-259 are exclusive and limit the power of the trial court to grant a new trial. The court must comply with the substance of the statute as well as the form. Recause one of the grounds specified in the statute exists, i.e., erroneous instructions, the granting of a new trial rests in the sound discretion of the trial court, and an order granting or refusing a new trial will not be reversed on appeal unless a clear abuse of discretion is shown. Sulkis v. Zane, 208 Kan. 800-802, 494 P.2d 1233 (1972). At the first trial, Carter requested an instruction based on K.S.A. 8-1531(a). Sterba requested instructions based on K.S.A. 8-1531(a) and (b). K.S.A. 8-1531 provides: “(a) The driver of a vehicle shall yield the right-of-way to any authorized vehicle or pedestrian actually engaged in work upon a highway within any highway construction or maintenance area indicated by official traffic-control devices. “(b) The driver of a vehicle shall yield the right-of-way to any authorized vehicle obviously and actually engaged in work upon a highway whenever such vehicle displays flashing lights meeting the requirements of K.S.A. 8-1731." In its memorandum opinion granting plaintiff s motion for new trial, the trial court noted that when the parties originally argued the jury instructions, it had decided that subsection (b) of K.S.A. 8-1531 did not apply because the statute referred to a vehicle rather than to a pedestrian behind a vehicle. The court now believed an instruction under subsection (b) should have been given because defendants’ violation of that statute would be negligence causally connected with the death of Beecham as a result of his physical proximity to the dump truck. The court believed its failure to instruct on K.S.A. 8-1531(b) caused the jury to determine that Beecham was 5% at fault. Now, on appeal, Carter argues that the trial court did not err in refusing to instruct the jury pursuant to either subsection (a) or subsection (b) of K.S.A. 8-1531. Carter states that subsections (a) and (b) deal with different situations. He now asserts that subsection (a) did not apply due to the absence of any evidence that plaintiffs decedent was working within a highway construction or maintenance area indicated by official traffic-control devices. And, further, Carter argues subsection (b) did not apply because it refers only to vehicles obviously and actually engaged in work upon a highway and not to pedestrians engaged in such work. Carter says to hold otherwise would negate the requirement of subsection (a) that official traffic-control devices be employed to indicate highway construction or maintenance areas where pedestrians are working and would allow street and highway maintenance departments to ignore safety requirements for pedestrian workers. Plaintiff argues the city truck met the requirements of both subsections. With respect to subsection (a), plaintiff contends the testimony of Loveland indicated the numerous flashing signals and lights on the dump truck, in conjunction with the orange vest and the daylight hours, were official traffic-control devices indicating the area where maintenance was being performed. Plaintiff also asserts the dump truck displayed flashing amber lights that met the requirements of K.S.A. 8-1731 and concludes Jay’s failure to yield the right-of-way to the dump truck, as required by subsection (b), caused Beecham’s death. We agree with Carter’s argument that K.S.A. 8-1531(b) does not apply to the facts of this cáse. That portion of the statute clearly requires the driver of a vehicle to yield the right-of-way to authorized vehicles obviously and actually engaged in work upon a highway and displaying flashing lights meeting the requirements of K.S.A. 8-1731. To extend the area of protection beyond individuals within or upon the vehicle working upon the highway to a pedestrian actually engaged in work upon a highway gqes beyond the intent of the statute. The trial court improperly instructed the jury in the second case when it gave an instruction on K.S.A. 8-1531(b). We disagree with Carter s assertion and the trial court’s determination that K.S.A. 8-1531(a) does not apply. That section of the statute requires the driver of a vehicle to yield the right-of-way to any authorized vehicle or pedestrian actually engaged in work upon a highway within any highway construction or maintenance area indicated by official traffic-control devices. Beecham was a pedestrian engaged in work upon a highway. K.S.A. 8-1531(a) does not define or describe a maintenance area indicated by an official traffic-control device. The only question remaining for the judge to determine was whether Beecham was working within a highway maintenance area indicated by an official traffic-control device. K.S.A. 8-1731 requires the secretary of transportation to adopt rules or regulations establishing specifications and rules governing the design and use of special flashing lights on vehicles engaged in highway construction or maintenance operations. As required by statute, the secretary of transportation promulgated K.A.R. 36-18-4, which requires construction and maintenance vehicles to be equipped with amber lights which meet or exceed the standards approved by the Society of Automotive Engineers Standard J99 as of April 1980. The standard requires such vehicles to have at least two amber flashing warning lamps, as widely spaced laterally as practicable, visible from both front and rear and mounted at the same level, and placed at least 42 inches high. The lamps are to flash in unison. K.S.A. 8-1507(a) requires the driver of any vehicle to obey the instructions of any official traffic-control device placed in accordance with the provisions of the Uniform Act Regulating Traffic on Highways. Amber lights placed upon a highway construction or maintenance vehicle are traffic-control devices. Here, the six amber flashing lights placed on the maintenance vehicle were official traffic-control devices indicating an area where mainte nance was being performed. A driver of a vehicle mnst yield the right-of-way to any pedestrian engaged in work upon a highway in a maintenance area indicated by a vehicle displaying flashing amber lights. The trial court should have given an instruction based on K.S.A. 8-1531(a). 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 demand 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 the 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, Syl. ¶ 1, 727 P.2d 450 (1986). Was the failure to instruct the jury on the duty imposed by K.S.A. 8-1531(a) reversible error that requires a new trial? Here, the only instructions in the record are the instructions from the second trial. We do find, however, the failure to give an instruction on K.S.A. 8-1531(a) at either trial requires a new trial. Defendants next contend the trial court erred by ruling that, as the jury should not have been allowed to compare decedent’s fault in the first trial, decedent’s negligence would not be submitted to the jury in the second trial. The parties agree that the evidence of Beecham’s negligence was substantially the same in the second trial as in the first. Jay notes there is additional testimony at the second trial that an autopsy showed Beecham was facing away from oncoming traffic and turned toward it at the last second. The standard of appellate review of a motion for directed verdict requires this -court 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 when the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987). Usually, .a determination of the presence or absence of negligence should be left to the trier of fact. We have noted, however, that where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination. Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983). In St. Clair v. Denny, 245 Kan. 414, 781 P.2d 1043 (1989), a vehicle driven by plaintiff s decedent was struck by a vehicle that ran a stop sign. The collision killed both drivers. The intersection was uncongested and both drivers had an unobstructed view of the intersection and oncoming traffic for approximately one-quarter mile. Defense counsel contended that a reasonable person could find that the decedent failed to maintain a proper lookout or otherwise exercise due care under the circumstances, making the question of decedent’s fault a matter for the jury’s determination. We stated that the evidence did not show decedent was aware of the approaching vehicle. Evidence that decedent had an unobstructed view of the intersection would not support a finding that she failed to keep a proper lookout. "There is no evidence that [decedent] failed to keep a proper lookout or that, assuming she did not, it was to any degree the proximate cause of the collision.” 245 Kan. at 419. We stated: “Although normally a determination of whether someone failed.to keep a proper lookout would involve a question of fact to be decided by the jury, the evidence presented here, is undisputed that the cause of this accident was [Denny’s] failure to stop at the posted stop sign. Even viewing the evidence in the light most favorable to the defendants, as this court must do, the minds of reasonable persons could not differ in concluding that the cause of this accident was [Denny’s] failure to stop, not [decedent’s] failure to keep a proper lookout.” 245 Kan. at 420. In reviewing the evidence cited by defendants, we note it is a close question, but we fail to see the defendants’ claimed inference that decedent failed to maintain a proper lookout or that there existed some other negligence on decedent’s part. The additional evidence cited by Jay adds nothing to the evidence adduced at the first trial that would allow a reasonable inference that Beecham was in any way negligent or failed to keep a proper lookout. v. The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988). Here, it cannot be said that no reasonable person would agree with the trial court that there was no evidence Beecham failed to maintain a proper lookout or was otherwise negligent. Thus, the trial court did not abuse its discretion and did not err in granting plaintiffs motions for new trial and directed verdict on grounds the jury should not have been allowed to compare Beecham’s fault. Jay next contends the trial court erred in instructing the jury at the first trial that pecuniary loss other than medical and funeral bills was an element of plaintiffs damages. Carter does not appeal this issue. At the first trial, plaintiff was awarded $5,000 for other pecuniary loss. K.S.A. 1990 Supp. 60-1903(e) states: “In any wrongful death action, the trial court shall instruct the jury only on those items of damage upon which there is some evidence to base an award.” Jay states that the trial court’s instructions allowed the jury to award pecuniary damages for loss of services, attention, filial care and protection, and financial support that the deceased would have contributed to the parent during the remainder of the deceased’s lifetime. Jay contends there is no evidence of any financial loss to Sterba because of Beecham’s death. He asserts that Sterba testified that she was providing Beecham with occasional financial support and Beecham never sent money to his mother. Sterba did testify Beecham put up about $1,500 to help her open a sandwich shop. He worked in the sandwich shop in January and part of July and August 1987. Sterba also testified that the day Beecham died had been planned to be his last day working for the City of Wichita and that he was planning to move back to Alva, Oklahoma, where Sterba lived, and to help in the sandwich shop. The jury instructions from the first trial are not included in the record on appeal; therefore, we do not know what instructions were given, to the jury. The instructions from the second trial are in the record, but the only issue in the second trial was liability, not damages. The burden is upon the appellant to designate a record sufficient to present his or her points to the appellate court and to establish the claimed error. Dickinson, Inc. v. Balcor Income Properties Ltd., 12 Kan. App. 2d 395, 399, 745 P.2d 1120 (1987), rev. denied 242 Kan. 902 (1988). Jay has failed to meet this burden and his contention, therefore, is without merit. The next issue relates to the negligence of the City of Wichita. At the conclusion of the evidence in the second trial, plaintiff moved for a directed verdict claiming there was no evidence of negligence by the City. The court took the motion under advisement. In her motion for a directed verdict, plaintiff made no reference to a need for, or lack of, expert testimony relative to the City’s negligence for failing to properly protect its worker. Three weeks later, On January 4, 1990, the trial court granted plaintiffs motion for directed verdict, concluding that no expert testimony had been introduced as to the negligence and fault of the City of Wichita and that such was necessary in order to submit the matter to the jury. The court stated: “[W]hile the jury was deliberating, I reached the conclusion that I should have sustained the motion for directed verdict in favor of the plaintiff. In the first trial and the second trial the same issue came up, and that is, as I continually think that through, the issue of a violation of legal duty of anyone connected with the City. I now am of the opinion that requires expert testimony, and that’s a threshold evidence opinion, in the Court’s opinion. That’s the second thing that does not appear on the record, and that’s the second thing that the jury wanted to talk about was exactly that issue, and that’s what made deliberations so difficult. TÍiey couldn’t figure out how to decide if there was a breach of duty. What they, specifically, asked me was, simply, that, and they hit the nail right on the head. I think they said, ‘Doesn’t it take an expert to tell us about this?’ And that’s actually the question they were asking me in the jury room when I talked to them, and I’d already decided about ninety-eight percent sure that that was correct, and it seems to me to be overpowering that that’s exactly what tangled up the deliberations, and I think that the jury was furnished with instructions and a challenge that, legally, a jury couldn’t comply with, in the Court’s opinion. At this point, the Court will sustain plaintiffs motion for a directed verdict that the Court took under advisement, for that latter reason, that is, the requirement of expert testimony, and the opinion to establish a violation of duty under the unusual circumstances of this case.” Neither the MUTCD nor Part VI of the MUTCD, the Work Zone Traffic Control Standards and Guidelines, is included in the record. Only pages 6-54 and 6-61 of the manual were admitted into evidence. Page 6-54 is a diagram titled “Typical Application— Daytime Maintenance Operations of Short Duration on a Four-lane Divided Roadway Where One Lane is Closed.” The page shows a sequence of three different warning signs, one informing the driver approaching the work area, “Road Work 1 Mile”; 2,600 feet from the first sign, a second sign stating which lane is closed; and 1,600 feet from the second sign, a last sign showing a diagram that indicates how traffic is to flow around the work area. One thousand feet from the third warning sign is a series of cones placed on the highway to direct traffic around the work area. At the work area is a truck or trailer with flashing lights as a warning. Page 6-61 is the mobile operations section of the Work Zone Traffic Control Standards and Guidelines found in the MUTCD, which states: “Mobile operations are work activities that make frequent short stops, up to a 15-minute period, such as litter cleanup or pothole patching and are similar to stationary operations. Warning signs, flashing vehicle lights, flags, and/or channelizing devices should be used. “Safety should not be compromised by using fewer devices simply because the operation will change its location frequently. Portable devices should be used. Flaggers may be used but caution must be taken so they are not exposed to unnecessary hazards. The control devices should be moved periodically to keep them near the work area. If mobile operations are in effect on a high speed travel lane, flashing arrow panels should be used.” The two exhibits were used by the defendants to cross-examine Loveland during the second trial. Loveland read page 6-61 of the manual to the jury. Carter notes that, although the plaintiff was precluded from making a claim against the City of Wichita because her exclusive remedy against the City was limited by the Workers Compensation Act, under K.S.A. 1990 Supp. 60-258a defendants are entitled to assert the comparative fault of the City of Wichita even though the City could not be formally joined as a party to the lawsuit. See Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984). The defendants contended throughout both trials that it was the city street maintenance department’s failure to provide a proper working area for its worker that caused the accident. Defendants argue that the jurors, having been informed of the applicable provisions of the Work Zone Traffic Control Standards and Guidelines section and using their common knowledge and experience as drivers in a relatively urban county, could properly conclude that the city street maintenance department was negligent. Defendants assert there was no need or requirement for expert testimony regarding the City of Wichita’s failure to comply with the MUTCD. Testimony in the form of opinions or inferences otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact. K.S.A. 60-456(d). Expert opinion testimony is admissible if it will be of special help to the jury on technical subjects as to which the jury is not familiar or if such testimony would assist the jury in arriving at a reasonable factual conclusion from the evidence. Pape v. Kansas Power & Light Co., 231 Kan. 441, 445, 647 P.2d 320 (1982); Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978). In Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982), the plaintiff was injured in an automobile accident. Plaintiff alleged both the state and the county had failed to erect a warning sign in accordance with the MUTCD. We noted that the MUTCD is to be used as a guide for state and local highway engineers in exercising their professional judgment as to any particular highway problem. We noted that the manual is not a substitute for engineering judgment. The provisions of the manual are intended to be standards for traffic control devices installation but not legal requirements for installation. 231 Kan. at 788-89. In Toumberlin v. Haas, 236 Kan. 139, the plaintiff alleged that the county had failed to place proper warning signs at an intersection. We noted that the plaintiff had presented no engineering testimony that the placement of any type of sign at the intersection was warranted or required under the terms of the MUTCD. It is a well-established rule in Kansas that the admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. Elrod v. Walls, Inc., 205 Kan. 808, 814, 473 P.2d 12 (1970); Stafford v. Karmann, 2 Kan. App. 2d 248, 250, 577 P.2d 836 (1978). The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision. Hoffman v. Haug, 242 Kan. at 873. In Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978), we noted that expert testimony is ordinarily required in medical malpractice cases to establish a standard of care and to prove causation. An exception to this rule is recognized, however, where the lack of reasonable care or the existence of proximate cause is apparent based on common knowledge or experience. The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case. Where the normal experience and qualifications of jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are not necessary. There is nothing complicated or complex regarding the MUTCD’s statement and explanation of how to sign a maintenance area and protect workers that requires expert testimony to assist the jury in arriving at a reasonable factual conclusion from the evidence. The MUTCD establishes a standard of care, and whether meeting this standard was essential under the facts of this case could be determined based on the common knowledge and the experience of the jury. Under the facts of this case, whether the warning signs or devices were sufficient to warn an ordinarily observant driver of a construction or maintenance operation being carried out in the curb lane of K-42 falls within the common knowledge and experience of motorists. No expert testimony concerning the standards of the MUTCD was required. Under the standards for granting a motion for directed verdict, there was sufficient evidence to require the trier of fact to determine if the City breached its duty of care. The trial court’s decision that the expert testimony was required and its grant of a directed verdict on the negligence of the City of Wichita was error. Sterba contends the trial court erred at the second trial in failing to submit an admitted exhibit, a diagram of the accident scene prepared by the investigating police officer, to the jury during its déliberations. The diagram included measurements, location of the point of impact, and other relevant information relating to the traffic accident. The exhibit was inadvertently removed from the pile of exhibits given to the jury. During deliberations, the jury requested the diagram on at least two occasions. The judge refused the jury’s request for the exhibit, apparently believing the jury was asking for an exhibit which had not been admitted into evidence. The judge explained his confusion at the hearing on the motion for directed verdict and concluded: “[T]here really is no question but that the jury was entitled to see that exhibit, wanted it, and it’s a — if there’s a motion filed for a new trial on that basis, which I think plaintiffs counsel indicated he would do, the Court would sustain the motion for that reason.” The rule where an exhibit is admitted but the jury fails to receive the exhibit during its deliberations is the same as where admissible evidence is excluded. Where admissible evidence is excluded, it is essential to the granting of a new trial that the matter shall have been presented to the court in the proper way and that harm or prejudice shall have resulted from the exclusion. If the point on which the rejected evidence was offered was conceded by the other party, was clearly established by other evidence, or could have been proved thereby, or if some other point was decisive of the case, a new trial should not be granted. 66 C.J.S., New Trial § 40. Although the plaintiff has not specifically shown how she has been prejudiced by the trial court’s mistake, this issue has merit because of other trial error. Sterba also contends the trial court erred in limiting the new trial to the issue of liability only. Sterba argues she was prejudiced by that limitation. She argues that Timmerman v. Schroeder, 203 Kan. 397, 454 P.2d 522 (1969), which dealt with whether a new trial should have been limited to the issue of damages, suggests the necessity of a new trial in this case on the issues of both liability and damages. K.S.A. 60-259 provides that a new trial may be granted to all or any of the parties and on all or part of the issues when it appears that the rights of the parties are substantially, affected for any of the six reasons listed. In Eckdall v. Negley, 5 Kan. App. 2d 724, 624 P.2d 473 (1981), a personal injury negligence action arose out of a motorcycle-automobile collision. After finding one of the jury instructions given by the trial court was outdated, erroneous, and reversible error, the Court of Appeals stated: “Since we find no error as to damages, that portion of the judgment is affirmed. [Citations omitted.] The question of apportionment of fault is reversed, and the case is remanded to the trial court for a new trial limited to the question of apportionment of fault. The trial court shall then apply the percentage of fault found by the trier of fact to the amount of damages affirmed in this case and enter judgment accordingly.” 5 Kan. App. 2d at 728. Because of what occurred in the first and the second trial, all parties are entitled to a new trial on all issues. We express no opinion as to the merits of the case, nor as to the actions of the parties to the litigation, but because of the number of trial errors it is necessary that we reverse and remand for a new trial in accordance with this decision.	[ -16, 120, -64, -116, 27, 64, 42, 90, 125, -91, 117, -13, -113, -61, 13, 97, -66, 29, -47, 41, -11, -77, 19, -117, -126, 51, -7, 6, -110, -53, 100, -10, 78, 112, -54, -43, 38, 72, -59, 90, -58, 6, -7, -16, 91, 3, -76, 42, -74, 15, 49, -114, -110, 42, 26, -25, -87, 40, 91, -84, -63, -79, -119, -121, -3, 16, -93, 0, -68, 5, -8, 25, -36, -79, 8, 120, 114, -90, -128, -28, 105, -55, 13, -90, 99, 33, 29, -19, -68, -68, 47, -2, 45, -90, -72, 120, 33, 47, -105, -99, 107, 114, 12, -22, -17, 85, 93, -88, -121, -53, -76, -111, -49, -76, -112, 56, -1, -123, 34, 117, -49, -14, 95, -59, 90, 23, -97, -78 ]
The opinion of the court wás delivered by Lockett, J.: This is a personal injury negligence action. Berlin Falls, while on his property, was severely injured when a “brush hog” mowing machine being operated on adjacent property threw a piece of wire that struck him in the face and eyes. Falls sued Rosemary Scott, the landowner, and Harry Ohmie, the mowing machine operator, for Falls’ injuries resulting from their alleged negligence. Although the jury returned a verdict for Falls, he appeals a number of adverse trial court rulings, claiming the trial court erred in: (1) not allowing plaintiffs expert witness to testify concerning the nature of a brush hog and its inherent dangerous design; (2) ruling that the brush hog was not inherently or abnormally dangerous and its operation within the city limits was not inherently dangerous; (3) determining that defendant Scott was not‘ responsible under Restatement (Second) of Torts § 427 (1963) for an independent contractor’s negligent operation of the brush hog because the independent contractor was not performing an inherently dangerous activity; (4) finding the landowner had committed no independent acts of negligence; (5) ruling there was no evidence of an employment or agency relationship between Scott and yard man Sonny Vaugh and the men working on Scott’s property; and (6) prohibiting a plaintiffs witness from testifying as to his employment status, but allowing defendants’ witnesses to testify as to their employment status. The basic facts are not in dispute. Plaintiff, Berlin Falls, and his wife live in the town of LeRoy, Kansas. To the south of the Falls’ home was the home of a neighbor. To the east of the neighbor’s property was vacant land known as the Trimble property, which consisted of four vacant lots. The Trimble property was purchased by defendant Rosemary Scott in late June 1987. After Scott purchased the property, she hired Sonny Vaugh (William G. Vaugh, Jr.) and his crew to clean up the property. When Sonny and his crew could not clear the lots of the trash, bottles, fence posts, and fencing wire or mow because of the tall weeds and other growth, Scott contacted Harry E. Ohmie to clear the vacant lots with his brush hog. A “brush hog” is a mowing machine sometimes also referred to as a “bush hog,” “field cutter,” “field mower,” and a “rotary mower.” It is a large mowing machine designed to cut brush, small trees, or high weeds and grass and is pulled and powered by a tractor. On July 6, 1987, Ohmie began mowing the vacant property for Scott. While Falls was walking in his back yard, he was struck in the face and eyes by a piece of wire thrown over 80 feet from the vacant land by Ohmie’s “brush hog” mowing machine. Plaintiff filed this personal injury lawsuit for damages- arising from alleged negligence of Scott and Ohmie. Prior to trial Scott filed two motions for partial summary judgment on the issue of independent contractor and a motion in limine as to plaintiffs expert’s testimony. The trial court granted or partially granted all three motions. At the conclusion of evidence, Scoff moved for a directed verdict, claiming there was no evidence that she was negligent or that Sonny Vaugh and his crew were,-.her employees or agents. The trial judge granted Scott’s motion for directed verdict. Although the plaintiff had not joined Sonny Vaugh as a defendant in the action, the jury was allowed to compare his negligence. The jury attributed 30% fault to Falls, 30% to Ohmie, and 40% to Sonny Vaugh and his employees. Falls’ damages were determined to be $106,117.13. Falls appealed, raising various issues. 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. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990). In his petition Falls alleged that Scott was liable for Ohmie’s negligence because of their relationship as master-servant. Scott’s first motion for partial summary judgment claimed that Ohmie, the brush hog operator, was an independent contractor and under the law she was not liable for the negligence of an independent contractor. The trial court correctly determined that Ohmie was an independent contractor at the time of the accident. Falls’ petition also asserted that even if Ohmie was an independent contractor Scott was liable for Ohmie’s negligence under Restatement. (Second) of Torts § 427 because a brush hog is an inherently dangerous instrumentality, and the operation of the brush hog in the city was an inherently dangerous activity such that, under Restatement (Second) of Torts §§ 519 and 520 (1976), Scott was strictly liable for the harm which resulted from an abnormally dangerous activity. The trial court granted Scott’s sec ond motion for partial summary judgment, finding (1) the operation of a brush hog in LeRoy, Kansas, is not an abnormally dangerous activity; and (2) whether a brush hog is an inherently dangerous instrumentality is a matter of law to be determined by the court. The court then determined that the brush hog was not inherently dangerous. Though the trial court used the terms “dangerous instrumentality” apd “inherently dangerous activity” interchangeably, there is a difference. “To be inherently dangerous, a commodity or condition must be so imminently dangerous in kind as to imperil the life or limb of any person who uses it, or, burdened with a latent danger or dangers that derive from the very nature of the commodity or condition itself and not from any defect in the thing. ‘Inherently dangerous’ has also been said to mean a type of danger inhering in an instrumentality or condition itself at all times, requiring special precautions to be taken to prevent injury, and not a danger arising from mere casual or collateral negligence of others under particular circumstances. Instrumentalities or substances which, by their very nature are calculated to do injury are considered to be dangerous- per se. An instrumentality is dangerous per se if it may inflict injury without the immediate application of human aid.” 57A Am. Jur. 2d, Negligence § 324. Generally, instrumentalities or substances which by their very nature are calculated to do injury are considered to be dangerous per se. Among the things which have been characterized as being dangerous, instrumentalities are: poisons; explosives and explosive devices; firearms, particularly if they are loaded; explosive substances; grinding wheels which contain a latent defect causing them to explode or disintegrate upon ordinary use; dry ice; bottles of beverages under pressure or containing any ingredient which would cause them to explode upon ordinary handling; and, in some cases, airplanes. There is some authority to the effect that electricity, is a dangerous instrumentality, but the mere fact that an instrumentality is run by electric power has been held not to make it inherently dangerous. Certain machines may come within the category of dangerous machines, the use of which, is limited by statute. 57A Am. Jur. 2d, Negligence §§ 322, 324, 325. Although objects such as bicycles, lawnmowers, power tools, motorcycles, or automobiles could be considered “dangerous instruments” in some contingencies, ordinary objects put to ordi nary uses are not generally considered to be dangerous instrumentalities. 57A Am. Jur. 2d, Negligence § 323. We agree with the trial judge’s conclusion that a brush hog properly used is not itself a dangerous instrument. There still remains the question of where the improper use of the brush hog or use of a brush hog without proper safety devices installed on the machine is an inherently dangerous activity. As a general rule, when a person (a contractee) lets out work to another and reserves no control over the work or workmen, the relation of contractee and independent contractor exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor. Balagna v. Shawnee County, 233 Kan. 1068, Syl. ¶ 3, 668 P.2d 157 (1983). An exception to the general rule is the inherently dangerous activity doctrine, which provides that one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such dangers. Balagna, 233 Kan. 1068, Syl. ¶ 4. Restatement (Second) of Torts § 427 defines the “inherently dangerous activity” doctrine in the following language: "One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” The Restatement (Second) of Torts § 519 sets forth the general rule regarding strict liability in tort for abnormally dangerous activities as follows: “(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. “(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.” Section 520 of the Restatement (Second) of Torts sets out the following test for determining whether an activity is abnormally dangerous: “In determining whether an activity is abnormally dangerous, the following factors are to be considered: “(a) existence of a high degree of risk of some harm to the person, land or chattels of others; “(b) likelihood that the harm that results from it will be great; “(c) inability to eliminate the risk by the exercise of reasonable care; “(d) extent to which the activity is not a matter of common usage; “(e) inappropriateness of the activity to the place where it is carried on; and “(f) extent to which its value to the community is outweighed by its dangerous attributes.” We adopted §§ 519 and 520 of the Restatement (Second) of Torts in Williams v. Amoco Production Co., 241 Kan. 102, 115, 734 P.2d 1113 (1987). Under the facts, Ohmie’s operation of the brush hog could have been an inherently dangerous activity which involved a special danger to others such that Scott, the employer of the independent contractor, was subject to liability for physical harm caused by the contractor’s failure to take reasonable precautions against such danger. Falls asserts the question of “inherently dangerous instrumentality” and “inherently dangerous activity” must be determined by the jury as a question of fact upon which reasonable minds could differ. Scott argues that the determination of whether an activity is “inherently dangerous” is not a question of fact for a jury to determine, but a matter of law for the court to decide. Scott relies on Balagna and cases, from other jurisdictions. Balagna, 233 Kan. at 1082. See Horn v. C. L. Osborn Contracting Co., 591 F.2d 318 (5th Cir. 1979); Hare v. Federal Compress and Warehouse Company, 359 F. Supp. 214 (N.D. Miss. 1973); Oklahoma City v. Caple, 187 Okla. 600, 105 P.2d 209 (1940); Kemp v. Knox County, 556 S.W. 2d 546 (Tenn. App. 1977). The commentary to the Restatement (Second) of Torts § 520 takes the position that whether the activity is an abnormally dangerous one is to be determined by the court, upon consideration of all the factors listed in the section defining an abnor mally dangerous activity. For additional authority, see 57 A Am. Jur. 2d, Negligence § 418. As to the question of what type of work is or is not considered to be inherently or intrinsically dangerous, courts have found no rule of universal application by which they may abstractly draw a line of classification in every case. Generally speaking, the proper test to determine if an activity is inherently dangerous is whether danger inheres in the performance of the work, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it. It is not enough that it may possibly produce injury. Stated another way, intrinsic danger in an undertaking is one which inheres in the performance of the contract and results directly from the work to be done — not from the collateral negligence of the contractor. Reilly v. Highman, 185 Kan. 537, 541, 345 P.2d 652 (1959); 41 Am. Jur. 2d, Independent Contractors § 41, p. 807; 57 C.J.S., Master and Servant § 590, b.(1); Annot. 23 A.L.R. 1084, 1095. The same test is recognized in Phillips Pipe Line Co. v. Kansas Cold Storage, Inc., 192 Kan. 480, 488, 389 P.2d 766 (1964). In Balagna, we were faced with the issue of whether trenching work fell within the ambit of the inherently dangerous activity doctrine creating liability on the landowner-contractee for the negligence of the independent contractor. The plaintiffs argued that trenching operations are inherently dangerous. We noted some jurisdictions have found as a matter of law that trenching operations are inherently dangerous while other jurisdictions have ruled as a matter of law that trenching is not inherently dangerous. We noted that the trial court had found that as a matter of law, on the basis of the undisputed facts contained in the record, the trenching operations involved in that case were not inherently or intrinsically dangerous, and concluded that the trial court had reached the correct result. Balagna, 233 Kan. at 1082. When the facts are undisputed, whether an activity is inherently or intrinsically dangerous is a question of law to be decided by the court. When ruling on a motion for summary judgment involving this question, the trial court as a matter of law must determine from the undisputed facts contained in the record whether the activity under review is inherently dangerous. When the facts are disputed, the question is to be determined by the jury. Prior to commencing mowing, Ohmie warned Scott she was standing too close to the brush hog, because it would throw material out from under it. After observing objects being thrown out by the blade of the brush hog, Scott thought, “ ‘Well, this is enough of this,’ and so I went home to my house.” The undisputed facts show that Scott was aware that there was a high degree of risk of some harm to the person, land, or chattels of others. She understood the likelihood that the harm that results would be great. There is evidence that the operation of that particular brush hog or any brush hog was inappropriate to clear the lots in the city. Ohmie was aware of the danger when he stated that he had no idea of how many windows he had to replace when operating the brush hog near houses. Ohmie’s brush hog had no safety shield or chain guards to prevent the mowing blade from throwing objects great distances. In spite of these facts, the trial court ruled as a matter of law that the operation of the brush hog was not inherently or intrinsically dangerous. We find under the facts of this case that the trial court erred in finding that as a matter of law the use of the brush hog was not an inherently dangerous activity. Whether the use of the brush hog, under the facts of this case, was an inherently dangerous activity should have been submitted to the jury. In response to Scott’s motion in limine to prevent plaintiffs expert witness from testifying as to whether the operation of a brush hog is an inherently dangerous activity, the trial court ruled the plaintiffs expert witness could not testify to: (1) whether the activity in question was negligence or not negligence or (2) whether the operation of the brush hog was inherently dangerous or that the brush hog was a dangerous instrumentality. The trial court stated the plaintiffs expert could testify as to the construction, operation, and other matters pertaining to the brush hog, without using any legal words of art in his characterizations or descriptions. The plaintiffs expert did not testify at trial. Falls argues the workings of a brush hog are not within the common knowledge of jurors so expert testimony was necessary to help the jury in arriving at reasonable factual conclusions from the evidence. He asserts there are technical facts which require expert testimony to explain the responsibility of using a brush hog within city limits. Testimony in the form of opinions or inferences otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact. K.S.A. 60-456(d). Expert opinion testimony is admissible if it will be of special help to the jury on technical subjects as to which the jury is not familiar or if such testimony would assist the jury in arriving at a reasonable factual conclusion from the evidence. Pape v. Kansas Power & Light Co., 231 Kan. 441, 445, 647 P.2d 320 (1982). See Plains Transp. of Kan., Inc v. King, 224 Kan. 17, 578 P.2d 1095 (1978). It is a well-established rule in Kansas that the admissibility of expert testimony is within the broad discretion of the trial court. Elrod v. Walls, Inc., 205 Kan. 808, 473 P.2d 12 (1970). A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. Slaymaker v. Westgate State Bank, 241 Kan. 525, 531, 739 P.2d 444 (1987). The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988). The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. Where the normal experience and qualifications of jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are not necessary. There is nothing complicated or complex about the mechanical operation of a brush hog nor is a brush hog such a complicated machine that expert testimony is required to assist the jury in arriving at a reasonable factual conclusion from the evidence. The trial court did not abuse its discretion by excluding the expert testimony. At the conclusion of the evidence, the trial court granted Scott’s motion for directed verdict, ruling that Sonny Vaugh was an independent contractor working in conjunction with a work crew. 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 reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. Holley v. Allen Drilling Co., 241 Kan, 707, 710, 740 P.2d 1077 (1987). The standard of appellate review of a motion for directed verdict is the same as that for the trial court. Anderson v. National Carriers, Inc., 10 Kan. App. 2d 203, 209, 695 P.2d 1293, rev. denied 237 Kan. 886 (1985). An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the results or product of his work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, Syl. ¶¶ 3, 5, 689 P.2d 787 (1984). Where the facts are undisputed or the evidence is susceptible of only a single conclusion, it is a question of law for the court whether one is an employee or an independent contractor. However, generally speaking, the question of whether an individual is an employee or an independent contractor is considered a question of fact for the jury or trier of facts. Baker v. Petroleum Co., 111 Kan. 555, 561, 207 Pac. 789 (1922); 41 Am. Jur. 2d, Independent Contractors § 53. Scott testified that she employed Sonny Vaugh to do the work and he hired various employees to do the work. She paid the men by the hour. During the period Scott was doing extensive landscaping, Sonny was working exclusively for her. To ensure that the landscaping was done as she wanted, she drew a picture for Sonny; she ordered the trees and the materials and he put them in where she wanted. She told him what to remove from the lots and to dig holes in a certain way. In ruling on a motion for a directed verdict, the court failed to resolve all facts and inferences reasonably to be drawn from the evidence in favor of Falls, the party against whom the ruling was sought. Reasonable minds could reach different conclusions based on the evidence. Therefore, the motion should have been denied and the question of whether Vaugh was an employee or an independent contractor should have been submitted to the jury. The trial court erred in entering a directed verdict on this issue. Falls asserts Scott’s hiring of Sonny Vaugh was an independent act of negligence on Scott’s part. He bases this conclusion on testimony indicating Sonny Vaugh had an alcohol problem. Falls does not cite any evidence that Scott was in any way aware of Sonny Vaugh’s problem with alcohol or offer testimony or other evidence of any facts that showed how the personal problems of Sonny Vaugh in any way affected plaintiff. Plaintiff states the jury also could have found negligence on Scott’s part for insisting on proceeding with a brush hog to clear the lots rather than hiring a bulldozer to clear the lots or waiting until fall to rake the lots or bum the weeds. Plaintiff does not cite any evidence that was introduced to support this conclusion. We have reviewed the record and determine the court did not err in granting a directed verdict in favor of Scott on the issue of her liability for any independent acts of negligence. Falls’ final contention is that the trial court erred in not allowing William Vaugh, Sr., to testify as to his employment status, while allowing others to do so. Plaintiff cites no case law or other authority to support his argument. He merely refers us to three portions of the trial transcript and concludes it was error for the trial court to allow defense counsel to question members of the work crew as to whom they were employed by but to refuse to allow plaintiff’s counsel to ask the same questions of William Vaugh, Sr. During the trial, plaintiff’s attorney asked William Vaugh, Sr.: “Q. Did you consider that you were actually an employee of Mrs. Scott?” Defense counsel objected and brief arguments were made at the bench. The court refused to allow the witness to answer, stating: “Under the circumstances of this case, I do not believe that this person is qualified to make an opinion as to the difference of an employee and independent contractor. I’m therefore going to sustain the objection to the question.” Later in the trial, Robert Barnes testified on behalf of defendant Ohmie as follows: “Q. Now referring to the summer, the early part of July, 1987, do you recall by whom you were employed? “A. Yes. “Q. And by whom were you employed? “A. Sonny Vaugh. “Q. And were you employed — ” Plaintiffs counsel objected to the question on grounds it was the exact question the court had refused to let William Vaugh, Sr., answer. The court overruled the objection. James Haney, another member of the work crew, was later asked: “Q. Now, going back to early July of 1987, uh, by whom were you employed? “A. Sonny. I can’t remember his last name. “Q. Sonny Vaugh? “A. Vaugh.” Plaintiffs counsel interposed the same objection as previously, and the objection was overruled by the court. The question asked of William Vaugh, Sr., and the questions asked of Barnes and Haney were similar. The trial court erred in sustaining defendant’s objection to the question asked of William Vaugh, Sr. Reversed and remanded for a new trial.	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Per Curiam: This is the second uncontested original proceeding in discipline filed by the disciplinary administrator against Carl S. Black of Shawnee Mission, the respondent. See In re Black, 247 Kan. 664, 801 P.2d 1319 (1990) (Black I). This second proceeding was pending at the time we considered Black I. Formal hearings before the Kansas Board for Discipline of Attorneys were held on September 5, 1990, and November 15, 1990. Respondent appeared in person and proceeded pro se. The underlying complaint in this matter arose from respondent’s handling of a divorce matter. The panel found respondent was retained in June of 1989 by the complainant, Phyllis Jan Simpson, to obtain a divorce for her. A hearing on the divorce was held before Judge Janice D. Russell of the Johnson County District .Court on October 26, 1989. At the conclusion of the hearing, the judge granted a divorce to complainant subject to Black’s preparing and presenting a journal entry for the court’s approval. Subsequent to the hearing, Phyllis Jan Simpson made numerous attempts to contact Black by telephone and by letter to obtain a copy of the journal entry of divorce. Black neither responded to the client’s inquiries nor prepared a journal entry for the judge to approve. Because Black failed to respond, the client retained J. Steven Neighbors to prepare the journal entry. Neighbors initially contacted Black to give him an opportunity to prepare the journal entry. When these efforts were unsuccessful, Neighbors prepared the journal entry and filed it on February 7, 1990. The panel found clear and convincing evidence that Black had violated Model Rules of Professional Conduct (MRPC) 1.1 (1990 Kan. Ct. R. Annot. 216) in that he did not provide competent representation to a client; that Black had violated MRPC 1.3 (1990 Kan. Ct. R. Annot. 219) in that he did not act with reasonable diligence and promptness in representing a client; and that Black had violated MRPC 1.4 (1990 Kan. Ct. R. Annot. 220) in that he neither kept his client informed of the status of the matter nor answered the requests of the client for information. At a subsequent hearing, testimony was received as to aggravating and mitigating circumstances. The deputy disciplinary administrator offered the final hearing report from Black I. As to mitigation, Black testified that he graduated from college in 1970; that after graduation he went into the Army as an airborne infantry officer, serving on active duty for five years in West Germany; and that he commanded the reserve centers in Lawrence, Kansas, and in Seneca, Kansas, for a period of time. He graduated from law school in 1980. He worked for a law firm in Kansas City, Kansas, for a period of time. He has been practicing on his own since 1983. He is married and has three children. He explains that part of his problem in handling the divorce matter resulted from an injury which required a knee operation in August 1989. Black had some trouble with his knee for a period of time after the operation. The panel noted that Black obviously has had a great deal of difficulty managing his law office and mail and has had one previous disciplinary complaint. After considering all the evidence and the aggravating and mitigating factors, it unanimously recommended that Black be publicly censured by the Supreme Court in accordance with Rule 203(a)(3) (1990 Kan. Ct. R. Annot. 137). In the prior case, In re Black, 247 Kan. at 667-69, the panel for the Board for Discipline of Attorneys found that Black had violated numerous Disciplinary Rules and Model Rules of Professional Conduct. This court found clear and convincing evidence establishing the violations found and enumerated by the panel. Although this court was concerned with the respondent’s conduct towards his clients and Judge Pusateri (for over a year he ignored court rules and orders and was eventually barred from practicing law in Judge Pusateri’s court), we approved the panel’s acceptance of Black’s testimony that he was receiving therapy for his psychiatric problems and seeking to alleviate his family, financial, and office management problems. At that time, we noted that only the passage of time would reveal how sincere respondent’s efforts for improvements were and how successful the results would be. Based on the mitigating factors, we suspended the imposition of discipline against Black for one year or until further order of the court, whichever occurred first, and placed Black on probation for the interim period subject to the following conditions: 1. That respondent continue with his present psychotherapy program. Any change therein is to be subject to the approval of the disciplinary administrator. 2. That respondent cooperate fully with the disciplinary administrator in all respects including, but not limited to, the setting up of a procedure with respondent’s therapist whereby the disciplinary administrator can monitor whether or not respondent is actively following through on the treatment program. 3. That respondent pay the sanctions imposed upon him by Judge Pusateri. 4. That there be no further violations of the Disciplinary Rules, the Model Rules of Professional Conduct, or any law by the respondent during this period of probation. In this case, we note the respondent explained some of his problems with the divorce case resulted from the injury to his knee which required an operation during August of 1989. We find that there is clear and convincing evidence to establish that Black violated MRPC 1.1, MRPC 1.3, and MRPC 1.4. We agree with the panel that the respondent should be publicly censured by the Supreme Court in accordance with Rule 203(a)(3). It Is Therefore Ordered that Carl S. Black be and he is hereby publicly censured for his previously enumerated violations of professional conduct in the handling of this divorce matter. It Is Further Ordered that, in the event respondent fails to abide by the conditions originally imposed by Black I and set out herein, a show cause order may be issued to the respondent and this court shall take whatever disciplinary action it deems just and proper without further formal proceedings. It Is Further Ordered that this order be published in the Kansas Reports and that respondent pay the costs of these proceedings.	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The opinion of the court was delivered by Allen, J. : The petitioner, Jonathan Banks, was. arrested on a warrant issued by E. L. Carney, Esq., a justice of the peace of Leavenworth county, on a charge of having sold the Kansas City Sunday Sun,, alleged to be a newspaper ‘ ‘ devoted largely to the publication of scandals, lechery, assignations, intrigues between men and women, and immoral conduct of persons,” in violation of chapter 161 of the Laws of 1891. A preliminary examination was had, and he was required to give bond in the sum of $500 for his appearance at the next term of the district court, and, in default thereof, he was confined in the jail of Leavenworth county. From this restraint he asks to be discharged. It is contended that said chapter 161 is void, because in contravention of section 11 of the bill of lights, which reads : “The liberty of the press shall be inviolate: and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.” The act under consideration was not passed to prevent the publication of libels, nor to suppress papers indulging in such publications, but to prevent the publication and sale of newsapers especially devoted to the publication of scandals and accounts of lecherous and immoral conduct. Without doubt a newspaper, the most prominent feature of which is items detailing the immoral conduct of individuals, spreading out to public view an unsavory mass of corruption and moral degradation, is calculated to taint the social atmosphere, and, by describing in detail the means resorted to by immoral persons to gratify their propensities, tends especially to corrupt the morals of the young, and lead them into vicious paths and immoral acts. We entertain no doubt that the legisla ture has power to suppress this class of publications, ' without in any manner violating the constitutional liberties of the press. The examining magistrate has found that the copy of the Sun which is filed with the petition in this case fills the description of a newspaper the publication and sale of which is prohibited by the act. There is abundance in the paper to support this finding. The words “largely devoted" do not necessarily imply that any certain percentage of the columns of the paper shall be filled with the prohibited matter, but they do imply that this shall be a prominent feature of the publication ; that special attention shall be devoted to the publication of scandalous items. There is no force in the contention that the title to the act is defective. The petitioner will be remanded to the custody of the sheriff. All the Justices concurring.	[ 48, -18, -7, -34, 42, 104, 45, -102, 90, -79, -93, 115, -55, -54, 68, 97, -78, 125, -44, 121, -60, -106, 55, -21, -46, -45, -39, -35, -79, 91, -26, 124, 76, 48, -54, -3, 70, 74, -63, -34, -114, -127, 41, -47, -48, 72, 52, 107, 115, 75, 17, 60, -13, 58, 28, 83, 9, 61, -53, 39, 113, -79, -72, -33, -35, 22, -125, 6, -104, 1, -64, 44, -70, 49, 7, -24, 115, -90, 6, -12, 13, -55, 9, 54, 34, 33, 53, -18, -92, -88, 47, -45, -99, -89, -112, 89, 107, 8, -100, -103, 6, 20, 15, 120, -29, 21, 21, 108, 1, -54, -76, -77, 15, 120, -98, -69, -29, 33, 32, 97, -58, -73, 88, -41, 114, 59, -114, 61 ]
The opinion of the court was delivered by Martin, C. J. : Action was brought in the court below by the defendant in error against the plaintiff in error December 26, 1889, the petition stating, among other things, that a partnership was formed between S. F. Carter and John S. Christie June 18, 1886, for carrying on a banking and exchange business, which was conducted until July 8, 1887, when S. F. Carter died intestate ; that the plaintiff was his widow, and the administratrix of his estate; that Christie continued to carry on the business without any accounting until September 19, 1889, when she made application to the probate court, and caused a citation to issue against him to execute a bond as surviving partner; that on September 20, 1889, he executed such bond, and thereafter claimed to exhibit assets to the appraisers appointed by the court, which exhibition was made November 26,1889 ; but she claims that the assets were not fully exhibited, and in consequence thereof the net amount was only $7,988.11, whereas, on a true showing, about $15,000 would be due the estate of her deceased husband ; and that no accounting had yet been made by Christie. She prayed for an accounting, and for judgment for $15,000 ; that a receiver be appointed, etc. A hearing was had on the application for the appointment of a receiver, the defendant objecting to any testimony for the reason that the court had no jurisdiction. On the hearing the court refused to appoint a receiver, but held that an accounting should be had, and referred the case to F. H. Kollock as referee to hear and report the facts, and to examine the mutual accounts, to which, reference both parties consented in open court. An answer was afterward filed, being a general denial. The referee heard the evidence and made his report, and the defendant below moved to dismiss the case for want of .jurisdiction, but judgment was rendered for the plaintiff below on the report, with a slight modification, on January 5, 1891, for the sum of $11,723 damages, and costs, besides awarding her one-half of the proceeds of certain accounts, amounting to $695 when collected. Time was thereupon given the defendant below to serve a case-made in 60 days, and the plaintiff below was allowed 20 days to suggest amendments, and the case to be settled on five days’ notice by either party. The time' was extended March 4, 1891, for 30 days, and again April 3, 1891, for 30 days, and the case-made was served April 24, 1891. ' The case was settled at Marion August 5, 1891. The question argued upon its merits in this court was as to the jurisdiction of the district court, in view of the matter of the partnership estate still standing open in the probate court; but the defendant in error has filed and presented a motion to dismiss the petition in error on the ground that she had no notice of the time of settlement of the case-made, and that she did not appear at the settlement, and had no knowledge thereof. It does not ap.pear from the certificate of the judge who was present .at the settlement, but it is recited that the case-made and the. suggestions of amendments thereto were presented, and such of said amendments as were proper to be allowed were incorporated in the case as parts thereof. No evidence was offered on the hearing in this court, and no admissions were made touching notice or appearance. Section 549 of the civil code authorizes the court or judge to “direct notice to be given of the time when a case may be presented for settlement, after the same has been made and served and amendments suggested.” In Gross v. Funk, 20 Kan. 655, it was held that a party cannot ignore nor treat as a nullity a notice of such character duly served, although the time fixed therein is earlier than that authorized by the order. This is analogous to the entry of a judgment by a justice of the peace where the service is made only two days before the time set for trial, the law requiring at least three days. In such case the judgment is erroneous, but not void. But this “is not like a judgment rendered upon no service.” (Nelson v. Becker, 14 Kan. 509.) The purpose of notice is to give an opportunity to the other party to appear and have his amendments allowed, and, if no amendments had been suggested, or all material amendments had been allowed, the court could say that the failure to give notice was not prejudicial. (Kan. F. M. F. Ins. Co. v. Amick, 36 Kan. 99.) And where no proper notice has been given the court may continue the settlement until a future day, so that notice may be served. (Hill v. National Bank, 42 Kan. 364.) In this case, however, it does not appear in any way that notice was ever given or waived, nor that the defendant in error appeared personally or by counsel, nor what amendments were allowed or disallowed. So far as appears, the settlement was made ex parte, and without opportunity of the defendant in error or her counsel to be present. The motion to dismiss will therefore be sustained. All the Justices concurring.	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The opinion of the court was delivered by Martin, C. J. : I. It is alleged in the petition, among other things, in substance that the sidewalk on the north side of Johnson avenue was constructed and maintained as required by an ordinance of the city, and it is contended by the plaintiff in error that the manner of making the connection from the level of the sidewalk to the level of the new track is' presumed to have been conformable to the requirements of the city ordinance, and there is no allegation that the receivers had in any manner ignored any such ordinance, and therefore the petition was insufficient to state a cause of action. It was alleged, however, that the defendants below ‘ ‘ wrongfully and negligently made an, abrupt connection between the said two levels by inclining boards at an angle of about 30 degrees . . . from the level of said sidewalk to the upper surface of the east rail of said newly-constructed track,” and no presumption obtains that the city had established any grade, nor that it exercised any supervision over the construction of the new side-track, nor in making the connection between it and the end of the old sidewalk. It was unnecessary for the plaintiff below to allege the violation of any city ordinance in adjusting the connection between the new side-track and the old sidewalk. II. It appears that Ledbetter had been working in the yards about a year, but nearly all the time in the west yards, and remote from Johnson* avenue; yet he worked in the east yards for 8 or 10 days next prior to his injury, though most of the time he was doing field-work, and not following the engine. It was in evidence, however, that he had crossed Johnson avenue many times during those days, either upon the footboard of the engine, on cars, or afoot; but he testified, and the jury found, that he never noticed this incline connecting the Steele & Busby switch with the end of the old sidewalk. He further testified, that he had never made any coupling or performed any work at that particular place. The plaintiff in error contends, however, that he was bound to take notice of it, and cannot be heard to say that he did not, and that the case comes within Rush v. Mo. Pac. Rly. Co., 36 Kan. 129, and others of like import. In the Rush case, however, the yardman got his foot caught between a main rail and the guard rail, and was run over and killed, and the negligence charged against the company was in failing to block between the rails ; but there were about 20 such places in the yards, and none of them were blocked, and it was held that the yardman must have had knowledge of the want of blocking, and that he waived any negligence that might otherwise be imputable to the railway company on that account. In the present case there was no such apparent danger. The incline was east of all the tracks, and extended along the east rail of the new track only the width of the sidewalk ; and while the jury found that, by the reasonable use of his eyesight, Ledbetter anight have seen it 'while crossing Johnson avenue, yet they say it was not plainly visible from all the tracks there. Besides, it should be remembered that it was covered to a considerable depth with snow at the time of the casualty, and that, if he had known of the incline being at or about the place where he alighted from the car, he might not have noticed that he was stepping onto it. We do not think that the failure of Ledbetter to notice this incline during the several days that he might have seen it, had his attention been called to it, nor the fact that he stepped upon it to make the coupling, is conclusive evidence of contributory negligence on his part, nor that he waived the risks attendant upon stepping thereon for the purpose of making the coupling. The faculty of close observation of objects is largely a gift. Some persons may walk once along a street and be able, without any special effort, to describe every prominent object upon and every projection into the street, while others might go up and down the same street for a year, who could not describe such objects and projections. If Ledbetter had ever walked upon this incline, doubtless he would have noticed it; but we cannot judicially say that his failure to observe it as he crossed Johnson avenue from time to time in doing his work was conclusive evidence of negligence on his part which ought to preclude a recovery for ■■ injuries sustained ■ by reason of the negligence of the receivers. The master is in duty bound to provide a reasonably safe place for his servant to work. Many dangers necessarily attend the performances of the duties of a yard switchman, but the master is not allowed to increase the hazards of his servant by placing pitfalls, obstructions, traps or inclines in his path, whereby he may lose his footing and be mangled or killed; and in such case, where there is no contributory negligence on the part of the servant, and his conduct has not been such that the court or jury must say that he has waived the negligence and assumed the risks, a recovery may be had on account of an injury resulting therefrom. (K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kan. 661.) No complaint is made because of instructions given or refused, nor on account of the admission or rejection of testimony, and, finding no material error in the case, the judgment must be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Allen,- J. : The defendants were convicted of prizefighting, and sentenced to confinement in the peniten tiary for one year. From this conviction they appeal. The contention on their behalf in this court is that the trial court erred in its definition of the term “prize-fight,” as contained in the instructions given to the jury. The portion of the instructions most criticised reads as follows : “The word ‘prize-fight/ as used in the statute of this state, and as used in the information, is used in its ordinary signification, and means a fight, or physical contest, between two persons for a prize or reward ; and it is immaterial whether such fight, or physical contest, is witnessed by many or few persons. The word ‘prize’ or ‘reward/ as used in the information, means a reward or sum of money to be gained by contest or competition. In order to constistitute a prize-fight under the statute of this state, there must have been an expectation, on the part of the persons engaged therein, of a reward or prize to be given to and received by such contestants, or the successful contestant; but it is immaterial whether such prize or reward is to be won by the successful contestant from the other, or to be otherwise awarded ; but the guilt of each defendant must arise from the joint act, fight, or personal and physical contest of the two contestants.” That a contest took place between the defendants at Sapp’s opera-house in Galena at the time charged is admitted. It is also admitted that it came off pursuant to a written agreement between the Galena Athletic Club on one part, and the defendants on the other, under which the defendants agreed to give a sparring exhibition of 25 rounds with five-ounce gloves, according to the Marquis of Queensbury rules. It provided for a referee, with power to continue the contest for a greater number of rounds. For this exhibition the athletic club agreed to pay each of the defendants $50. There was no substantial contro versy in the testimony offered at the trial as to what was done. That a contest took place ; that the parties used gloves weighing five ounces each; that there -were 22 rounds of sparring with such gloves, and that the defendant Johnson was knocked down, and, failing to get up, was declared beaten, is undisputed. The claim of the defendants, at the trial and in this court, is that this was a lawful exhibition ; that it was what is fairly and properly termed a “sparring or boxing match with gloves,” for the purpose of exhibiting the skill, strength and agility of the contestants in a proper and lawful contest; that for this exhibition the parties were each paid a sum of money, the amount of which did not depend on the result of the contest; that it was not a prize-fight within the meaning of the law, because it was not for a prize to be gained only through success ; nor a fight, because the parties were entirely friendly and free from the purpose to injure each other. On the part of the state it is insisted, that the testimony clearly shows that this was an ordinary brutal fight for money, and of the kind the statute was designed to prohibit; that the evidence shows beyond question that the parties fought till one of them was knocked senseless, and that the conviction was rightly had. It is not for this court to express an opinion as to the guilt or innocence of the defendants under the testimony. They had a right to have the law correctly declared to the jury. Webster defines the word prize-fight, “A contest in which the combatants fight for a reward or wager.” The court instructed the jury that the word “prize-fight,” as used in the statute, means a fight or physical contest between two parties for a prize or reward, and this phrase “ fight or physical contest,” or the expression “fight or con test,” is repeated many times in the instructions. By this the court gave the jury to understand that it need not be a fight, but that a physical contest for a prize or reward was punishable under the statute. This is not the law. There are very many physical contests which are not only not punishable, but altogether permissible. It was conceded that the defendants engaged in a physical contest. It was even conceded that they engaged in a boxing-match, but it was not admitted that they fought. It is a fight, only, that the statute reaches. Wrestling, fencing, bóxing, and numberless other matches, in which tire physical powers are employed by men in friendly contests with each other, are not punishable. It must be a fight. The woi’d “fight” implies a purpose to use violence for the purpose of inflicting injury, and the jury alone had the right to determine whether the defendants, in fact, engaged in a fight, or merely in an innocent contest with no purpose to inflict injury on each other. Whether the gloves xxsed were such as rendered it improbable that the contestants could inflict injury on each other, or were put on as a mere sxxbtex’fuge to disguise a fight, was for the jury to determine. (The State v. Burnham, 56 Vt. 445 ; People v. Taylor, 56 N. W. Rep. 27.) We think that part of the instruction with reference to the prize or reward substantially correct, and that it makes xio difference whether the prize or reward is to be woxx by the successful contestant from the other, or to be awarded by a third party. Nor do we deem it indispensable that the prize or reward should be given to the successful contestant alone, though there must be a prize to be gained by the coxitest. The evil desigxied to be remedied by the statute is that class of brutal exhibitions for giving which considerable sxxxns of money were paid, and we do not think the statute can be evaded by rewarding the unsuccessful as well as the successful combatant. Por the error in the instructions the judgment must be reversed, and a new trial awarded. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J. : This action was brought by the Fourth National Bank of Wichita against Louis Roser and Herman Dreisvogt for the purpose of setting aside conveyances of real estate in the city of Wichita, made by Jacob Roser and wife to Louis Roser, and to subject the property to the payment of a judgment obtained by the bank against Jacob Roser. One of the deeds made by Jacob Roser purported to convey to his brother Louis five lots on Fifth avenue, and the other, which was executed about three weeks later, purported to convey to him four lots on Central avenue. It was alleged that both of the deeds were fraudulently made by Jacob Roser and wife to defeat their creditors, and that no consideration whatever was paid by Louis Roser for the property, and that he had no interest therein, but was merely holding it for Jacob Roser and his wife. Dreisvogt, a judgment creditor of Jacob Roser, who claimed a lien upon the property, was made a party defendant. The case was tried without a jury, and the court found that the transfers were fraudulent as against the bank and Herman Dreisvogt, and a decree was entered setting the deeds aside, and subjecting the property to the payment of the claim of the bank, which was decided to be a prior lien, and, second, in favor of Dreisvogt. Louis Roser instituted this proceeding in error against the bank to obtain a review of the rulings of the district court, but Dreisvogt was not brought into the case. At the outset we are asked to dismiss the proceeding, because the record itself fails to show that any notice of the time of settling the case was given, or that notice was waived, or that any amendments were suggested by the bank, or that the bank was represented when the case was settled and signed. It is true the record is silent in those particulars, but uncontradicted proof outside of the record was offered, which shows that the attorney for -the bank was present when the case was settled .and signed, and consented to the case as made. The claim that the matters relating to the service of a case-made, the suggestion of amendments, the notice or waiver of notice and the presence of the parties at the time of settling and signing the case must appear in the record itself cannot be sustained. It is held that, where a review is based upon a case-made, the rulings of the trial court complained of and assigned for error must be shown by and embodied in the case-made itself, and can never be shown by any other or by extrinsic evidence, but matters relating to the service, signing and settling of the case-made may generally be shown by extrinsic evidence, or, in other words, outside of the case-made. (Jones v. Kellogg, 51 Kan. 263.) The objection that there is a defect of parties cannot be sustained. Dreisvogt’s claim was separate and distinct from that of the bank, and no matter how the controversy between Roser and the bank may be determined, he cannot be prejudicially affected. The judgment which he has obtained and his rights thereunder cannot be disturbed by the decision in this proceeding. As to the real estate described in one of the conveyances, we find there is sufficient testimony to sustain the judgment of the court. From a reading of the testimony it would appear that the preponderance of the evidence was in favor.of the plaintiff in error, and tended to sustain the validity of the conveyance, but as there is some testimony supporting the conclusion of the trial court, we are concluded upon the facts by its finding. As to the Fifth avenue lots, it appears that Jacob Roser erected a house thereon, and was occupying it with his family at the time they were conveyed to Louis Roser. It is argued that Jacob Roser and family had abandoned the homestead prior to the conveyance of the same, but we fail to find any proof sustaining this contention. Jacob, with his wife and minor children, had been occupying the homestead for a period of about two years, and were occupying it as their home at the time it was sold and conveyed by a deed of general warranty to Louis Roser. In Monroe v. May, 9 Kan. 476, it was held that the transfer ’ of exempt property could work no fraud upon creditors, and that “the homestead is something toward which the eye of the creditor need never be turned.” In Wilson v. Taylor, 49 Kan. 774, it was declared that “a conveyance of a homestead or other exempt property, even though made with intent to defraud creditors, vests the title thereof in the grantee, and does not become subject to the lien of a judgment previously obtained by a creditor of the grantor.” The judgment of the 'district court decreeing the cancellation of the deed conveying the four lots on Central avenue will be affirmed, and so much of it as purports to set aside and cancel the conveyance of the five lots on Fifth avenue will be reversed, and a new trial as to the latter property will be awarded. All the Justices concurring.	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The opinion of the court was delivered by Fontron, J.: In 1953 Mr. and Mrs. Wofford were married in Valley Falls, Kansas. Three children were bom to the couple. Incompatibility plagued their relationship during the final years of their union and in 1971 Jackie, or Jack, the husband and plaintiff herein, filed action for divorce. Elizabeth, or Betty, the wife, cross petitioned for relief. The case was tried in the Shawnee district court in March, 1972, before the Honorable Adrian J. Allen, and in April, the court awarded Jack and Betty a divorce, each from the other, on grounds of incompatibility. Custody of the two younger children, ages 14 and 11, was placed with Betty, while custody of the older son, then 16 and since killed in an accident, went to his father. The court set child support payments at $40 per week payable to Betty, divided the couple’s property, awarded no alimony and required Jack to pay the debts. Mr. Wofford has filed an appeal with respect to the division of property and the allocation of debts. His position, essentially, is that his wife received all the property and he received all the debts. Let us briefly examine the property, all of which was accumulated during the marriage years, since neither party brought assets into the marriage. Mrs. Wofford was awarded the equity in a 60-acre farm in Jefferson County. The record reveals that at the time of trial, an offer of $31,000 had been received for this acreage, which was subject to a mortgage balance of $15,200. We were given to understand on oral argument that the land has since been sold for approximately $32,000; that the mortgage has been paid in full; and that the balance is being held by the bank awaiting the outcome of this litigation. Mrs. Wofford was also awarded an $800 balance due under a real estate contract, a 1961 Ford car purchased for $50, household goods, furnishings and appliances of undisclosed value and personal effects. To Mr. Wofford went a 1965 Oldsmobile with a broken piston— value undisclosed, farm machinery and equipment including two trucks, federal and state tax refunds amounting to some $1055, a $1500 paid-up life insurance policy, cash in the bank and accounts receivable of $195 and his personal belongings. A tabulation of the indebtedness bestowed on Mr. Wofford runs to $14,826.66, according to his testimony. This includes $12,000 owed on the farm machinery which he valued at $6,000. Mrs. Wofford testified the machinery would not be worth $12,000, but gave no specific figure. There was no independent testimony as to the value of the farm equipment. Mr. Wofford, disenchanted with the court’s decision, filed two motions; one for a new trial and the other for alteration or modification of the decree, both motions being directed toward the property division. The motions were overruled, but Judge Allen prepared a letter memorandum which gives us an insight into the reasoning which went into his judgment. The memorandum reads in pertinent part: “The trial court is commonly required to solve economic problems resulting from divorce when the facts virtually defy a satisfactory solution. This is particularly true when, as in this case, there are children bom of the marriage, debts beyond the capabilities of the parties to handle, relatively limited assets and incomes and health problems. Nevertheless, in such a case, the Court must decide the economic matters involved in order to make provision for care of minor children, maintenance of the parties, and divide the property. In a case such as this, a decision as to any one of these issues cannot be made intelligently without regard to the others. “From the evidence in this case, there are doubtless many different methods in which the very difficult economic problems inevitably resulting to both parties from this divorce could be resolved by a Court. For example, the Court could award the parties undivided interest in various assets and require the plaintiff to pay sums to the defendant for her support. This would possibly be a better solution than the one finally adopted by the Court and is a solu tíon that this Court considered. The evidence certainly lends support to such a solution and such would have been a more typical way to resolve the case as an easy out for the Court. “The Court felt at the time the decision was made, and still does, that the judgment entered by the Court presents the best way to resolve the various serious economic problems resulting from this divorce.” From the standpoint expressed by the trial court in its memorandum, the division of property, unbalanced though it might be if considered alone, is not as harsh as it might appear at first blush. The court was obviously appraising the dire economic position of this family from all angles: limited assets; income and earning capacities; health problems; indebtedness; provision for minor children; and employment possibilities. To recite a few background facts which were before the court: Jack was employed as a laborer by Casson Construction Company. His gross earnings from the job in 1971 were $10,214, but he had losses from farm operations for that year of some $4450. During the first three months of 1972 his gross earnings amounted to $1803 with a net of $1347, his hourly wage being $5.65. Retty was temporarily out of work at the time of trial but had been employed in civil service positions, and more recently had worked a couple of years as a medical secretary. She was able to earn around $375 per month. On four occasions she had been referred to the Topeka State Hospital and had spent several months there. Her mental health was improved at the time of trial. The issue is whether the court abused its discretion in dividing the property. To an onlooker the division would appear lopsided until he considered the entire financial picture, including the absence of alimony. We view the situation here as quite similar to that presented in Lavery v. Lavery, 208 Kan. 603, 492 P. 2d 1311. In that case the wife was awarded no alimony but was awarded the home “as a division of property and in lieu of alimony” as was recited in the journal entry. While no such recital expressly appears in Judge Allens memorandum letter, it appears to us he had the thought in mind that the property awarded to Mrs. Wofford would suffice to serve as alimony as well. Little need be said concerning the role of judicial discretion in actions of this kind. When it comes to matters relating to alimony and property division arising in divorce actions, the trial court is possessed of wide discretion, and its judgment in respect to awarding alimony and dividing property will not be disturbed on appeal in the absence of a dear abuse of discretion. (See 2 Hatchers Kansas Digest [Rev. Ed.] Divorce & Separation, §50.) We oaxmot say, in viewing as a whole, the economic climate encompassing the Wofford family, the relative earning capadties of Jack and Betty, their respective health backgrounds and the custodial responsibilities of each, that an abuse of discretion has been shown. This we believe is so, even though the total indebtedness to be borne by Mr. Wofford is indeed high for a working man, assximing his estimate of the value of the farm equipment is anywhere near correct and that family loans remain unforgiven. Our cases indicate there is no fixed rule for determining an appropriate division of family property or what proportion of a husbands estate should be allowed as alimony. (Preston v. Preston, 193 Kan. 379, 394 P. 2d 43.) Whether members of this court individually or collectively might have dedded matters differently in view of the existing indebtedness, is quite beside the point, provided the arrangements made by the couxt ultimately do not appear inequitable xxnder subsisting conditions. The trial judge had the opportunity to hear and observe the witnesses at first hand, which gave him no mean advantage. (Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215), and we cannot stigmatize his judgment as exceeding the bounds of judicial discretion. The judgment of the trial court is affirmed.	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The opinion of the court was delivered by Owsley, J.: In February, 1972, the trial court granted a default divorce to the plaintiff wife, deferring its decision on child support, alimony, division of property, and attorneys’ fees to a later date. The wife appeals from a judgment on those matters entered following the deferred hearing on May 11,1972. She claims the trial court erred in making a division of property without hearing evidence, in its construction of K. S. A. 1973 Supp. 60-1610 (b), and in granting an excessive portion of the marital estate to the defendant. The plaintiff’s opening statement, highly summarized, revealed the following: The parties were married in 1948 while both were students at Wichita University. In 1949 they moved to New York City where defendant attended Columbia University, from which he received his BS degree in English in 1952. The parties then returned to Wichita where defendant was employed by the Boeing Company. In 1956 the family moved to California where defendant went to work for the Douglas Aircraft Company. In 1962 defendant terminated his employment with Douglas Aircraft, and he remained unsalaried until 1970. In 1964 the family returned to Wichita. Six children were born to the union, five of whom remained in the home at the time of the divorce. In 1968 the defendant received a master s degree from Kansas State Teachers College of Emporia, and he worked on a doctorate at the University of Oklahoma in the year 1969. In 1970 he became an instructor at the Butler County Community Junior College. At the time of the trial the defendant was teaching at Friends University at an annual salary of $8,889.60. From 1951 to the date of the filing of the petition for divorce in 1971, the defendant’s total earnings were $67,750. Other than this amount ihe family was supported by the wife’s income derived through gifts from her father. Her income from 1955 to the filing of the divorce action in 1971 totaled $390,288. Counsel detailed the source of these funds and stated the funds were applied to the support of the family. At the time the petition of divorce was filed the parties had $4,355.47 in checking accounts and $6,749.77 in savings accounts. The plaintiff owned 138,911 shares of Raymond Oil Company stock which had been purchased from her funds at a total cost of $86,000. She also owned an interest in two oil leases which were in the process of being developed. The parties owned two automobiles, a 1968 Oldsmobile and a 1959 Ford Thunderbird; their home, appraised at $60,000; and their household furnishings and personal belongings. Counsel for the defendant agreed the facts disclosed in plaintiff’s opening statement were essentially correct. He did point out, however, that defendant’s parents had passed away and defendant had acquired at the time of their passing $9,000 in insurance proceeds and $3,000 in a savings account which became a part of the marital property. At the close of the opening statements the following occurred: “TbCe Court: Well, before you start, I’m a little bit surprised from the opening statements as to what counsel had in mind. Now, I certainly don’t see any point in going back here — I’m not going to take a running account of business investments for twenty-four years and trace it through and argue as to who was the smartest and who wasn’t, who made the money and who did not, who had better judgment and who did not. We’ve had the divorce case here. We’re here today to do one thing, that is divide the property equitable pursuant to law. To do that all we’ve got to know is what the property consists of and what each party thinks they’re entitled to. I certainly don’t intend to proceed here as if we were splitting up a business partnership after twenty-four years and tracing assets. I’m interested in what they have now, not what they had in 1948 or 1953, because that’s not what I’m dividing. “Now in that line, can you stipulate as to what property diere is in the estate? “Mr. Scott: I am confident we can stipulate as to what property is there. The only evidence — and I’m not going through a great expanse — the only evidence that I want to show the Court is what of Mrs. Salem’s money has been used over the years, and that it was the origin of what property they have now; and tíiat’s in two schedules, or it would actually be three schedules, a gift schedule, an income from the — just a summary by years of income from the parties, and then what has been paid out on these on Shirley Salem’s account for personal draws only what went to the Salems for tíieir personal living. Those three schedules show what I think the Court needs to know in dividing the property. That Mrs. Salem did support the family basically for the last ten years. That she did give her husband this fine education and that it was her money that acquired the properties that they have now. And those are just matters of record and the/re simple compilations or summaries by an accountant who is here to testify that he made them. And that’s about all his testimony is going to be, the accountant for Raymond Oil Company, to just introduce and lay the foundation for the records from which they are taken, and the accountant summarized it from that.” The parties then stipulated the marital estate was in accord with the statement of plaintiff’s counsel. The parties also stipulated the book value of the Raymond Oil Company, Inc., stock as of August 30, 1971, was approximately ninety-six cents per share; that if Francis Raymond were permitted to testify he would state there was little or no market value for the stock and if he were to purchase the same he would pay approximately forty cents per share. It was further stipulated the Raymond Oil Company, Inc., had made an offer to purchase the stock of other stockholders at one dollar per share upon the basis of a promissory note payable over a period of thirty-six months at no interest. It was also stipulated that if Francis Raymond and Michael Raymond were to testify they would state the oil leases owned by Shirley Salem had little or no value. After the court announced there was no need to introduce evidence, counsel for the plaintiff submitted Exhibits 1 through 12 which, among other things, included accounting sheets showing the income of tire parties during the marital years. Counsel for each of the parties then proposed a division of property. It was the position of the plaintiff that she was entitled to the whole of the assets in the marital estate since they were accumulated from her separate funds. The only concession plaintiff would make was to permit defendant to retain $2,000 of about $11,000 that was on hand at the time of the filing of the petition for divorce. The court commented, “You can’t very well say you divided the property if you give it all to one party.” Counsel for defendant suggested the home and the Raymond Oil Company stock be sold and that a substantial portion of these funds be set over to defendant. The judgment of the court was journalized and filed on December 8, 1972. The plaintiff was awarded as her separate property: 1. 1968 Oldsmobile station wagon. 2. The division of cash made by the parties, of which plaintiff retained about $9,000. 3. The residence in Wichita valued at $60,000. 4. 138,911 shares of stock in Raymond Oil Company, Inc. 5. All other property in the marital estate not awarded to defendant. The defendant was awarded as his separate property: 1. 1959 Ford Thunderbird. 2. The division of cash made by the parties, of which defendant-retained about $2,000. 3. The household furniture at residence in Wichita or $4,000 cash — option in defendant. 4. Personal property formerly owned by defendant’s parents. 5. Judgment against plaintiff for $30,000, payable in one year, to be a lien on residence property and corporate stock. The judgment also declared each party to be liable for fifty percent or $3,010.99 of the amount due and owing the Raymond Oil Company, Inc. The plaintiff’s share of the marital estate, which had a fixed value, totaled $202,000, against defendant’s share of $36,000. The trial court did not award alimony, but continued a previous award for child support of $50.00 per week. The plaintiff claims the trial court erred in making a division of property without hearing evidence. It appears the parties had been before the trial court on three prior occasions and this, together with facts disclosed by the detailed opening statements introduced by opposing counsel, stimulated an effort to expedite the trial. We cannot, however, give approval to any ruling of the trial court which prohibits the parties from introducing relevant admissible testimony. It is apparent from the record that the plaintiff appeared at the hearing prepared to present evidence. After the statement of the trial court implying no evidence was necessary, counsel for plaintiff did not make known his objections to the court’s statement. In fact, he acquiesced therein by stating the only evidence he wished to introduce was a series of exhibits to prove plaintiff’s funds were the origin of the property in the marital estate. Twelve exhibits introduced were admitted in evidence. K. S. A. 60-405 provides no judgment should be set aside by reason of the erroneous exclusion of evidence unless the proponent of the evidence makes known its substance (see also K. S. A. 1973 Supp. 60-243 [c]). Here, no effort was made by plaintiff to make known the substance of the evidence she expected to present, and the statement of her counsel revealed there was no additional evidence she desired to present. The situation also provided a basis for the court’s statement that he needed to know only the nature of the marital estate and what the parties thought each was entitled to. In itself, this statement of the law, if given a literal interpretation, was erroneous. Many factors may be considered in reaching a decision which satisfies the statutory requirement of “just and reasonable.” (Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478; Saint v. Saint, 196 Kan. 330, 411 P. 2d 683; Folk v. Folk, 203 Kan. 576, 455 P. 2d 487.) The fact the trial court made a statement as to the law which might be considered erroneous does not affect the validity of a judgment which otherwise satisfies the statutory directive. K. S. A. 1973 Supp. 60-1610 (b) provides: “(b) Division of property. The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.” The plaintiff also claims the trial court erred in granting an excessive amount of property to defendant and in failing to grant alimony to plaintiff. The plaintiff’s argument is based on the fact the whole of the marital estate resulted from her funds. Under these circumstances, she claims the whole of the marital estate should have been awarded to her. The trial court pointed out that under K. S. A. 1973 Supp. 60-1610 (b) the source of the property was immaterial and the statutory directive to divide would not be followed by awarding all the property to one party. G. S. 1949, 60-1511, the predecessor of K. S. A. 1973 Supp. 60-1610 (&), provided that in a divorce proceeding the wife was entitled to all her separate property and such share of the husband’s property as the court might deem just and proper. We considered the change in the law in Zeller v. Zeller, supra. We said: “The significant change in the law regarding division of property is that the court is no longer required to set aside to the wife the separate property which she brought to the marriage or acquired with her own funds after the marriage. The court now is given authority to divide all of the property owned by the parties, regardless of the source or manner in which acquired, in a just and reasonable manner.” (p. 459.) We stated in Harrah v. Harrah, 196 Kan. 142, 409 P. 2d 1007: “. . . Although the source of the property no longer affects the trial court’s decision as a matter of law, it is still one of the practical considerations along with the contributions of each spouse and the length of the marriage.” (p. 147.) The controlling test, however, is the exercise of discretion in a “just and reasonable manner.” We have stated on many occasions that a division of property will not be disturbed unless it is clearly shown there was an abuse of discretion. (Preston v. Preston, 193 Kan. 379, 394 P. 2d 43; Dikeman v. Dikeman, 191 Kan. 68, 379 P. 2d 314.) Judicial discretion was defined in Stayton v. Stayton, 211 Kan. 560, 506 P. 2d 1172, as follows: “Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial corut then it cannot be said that the trial corut abused its discretion. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” (p. 562.) The division of property in this case discloses property of a value of $202,000 was awarded to the plaintiff as against a judgment and property valued at $36,000 to the defendant. Such a division might be considered inequitable to the defendant in the absence of a showing of the source of the property. We cannot indulge in speculation as to the trial court’s thinking, but it would appear consideration was given, at least in some degree, to the source of the property. The order of the trial court as to child support consumes most of defendant’s earnings other than limited living expenses. Under these circumstances, we cannot fault the trial court for failure to award alimony. The plaintiff also contends the trial court erred in refusing to make its order of December 8, 1972, modifying child support from $50.00 per week to $75.00 per week retroactive to May 11, 1972. The order of modification resulted from a motion filed on November 9, 1972. The plaintiff argues evidence produced at the December 8 hearing showed that the full extent of defendant’s earnings at the time of the May 11 hearing was not disclosed, and since the judgment of May 11 had not been journalized the increase to $75.00 per week should date from May 11. The general rule, as often set out by this court, is that child support may be modified at any time circumstances render such a change proper, but the modification operates prospectively only. (Ediger v. Ediger, 206 Kan. 447, 479 P. 2d 823; Brieger v. Brieger, 197 Kan. 756, 421 P. 2d 1.) We find no reason to depart from this rule in the present case. The record shows the order of $50.00 per week child support pre-dated the trial of the action on May 11 and was not dependent upon the journal entry of final judgment for effect. The journal entry merely recited: “The present order of support will be continued until the Court has evidence upon which to base a new order. . . .” The effectiveness of the original order was continued with or without the filing of the journal entry. Any alteration of the amount of that original order pre-dating the order of modification of December 8, 1972, would constitute a retroactive judgment which is prohibited. The trial court is vested with wide discretion in adjusting the financial matters of the parties to a divorce action; and unless we can say no reasonable man could have reached the same results as tire trial court, there is no abuse of discretion. Under the facts and circumstances disclosed in the record, the judgment of the trial court is well within the confines of judicial discretion. We cannot approve the statements and actions of the trial court in the particulars set forth in this opinion, but we conclude the judgment of the trial court should be affirmed. Affirmed. Schroeder, J., dissents.	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The opinion of the court was delivered by Schroeder, J.: This is an action by a real estate broker to' recover a commission on the ground that he produced a purchaser who was ready, willing and able to purchase the defendant’s 9,000 acre South Dakota ranch upon terms previously agreed by the parties, where the owner who had listed the ranch with the broker refused to sign the contract upon tender of the down payment. The case was tried to a jury which returned a verdiot for the broker in the sum of $15,000. The defendant has duly perfected an appeal. The action was defended on the ground that the broker never produced a qualified purchaser willing to meet the terms and conditions upon which the owner desired to' sell his South Dakota ranch. Although numerous points are asserted on appeal our decision hinges upon the issue whether the broker produced a qualified purchaser. In the early part of September, 1970, J. R. Allen (defendant-appellant) went to the office of a real estate broker, Chester Winkelman (plaintiff-appellee) and orally listed his South Dakota ranch consisting of approximately 9,000 acres for sale at $40 an acre. The total purchase price at $40 per acre figured $356,800. During the conversation Winkelman informed Allen his commission would be 5% of the sale price. Winkelman told the appellant he would find a qualified buyer, which meant “someone able to handle it”. The listing of the real estate was non-exclusive and the listing was not put in writing. By reasons of Winkelman s efforts to sell the land he found Russell Bird who was interested in the property- Winkelman then consulted with Allen and procured his authorization to show the ranch in South Dakota to Bird. Allen inquired about the prospective purchaser and was told by Mr. Winkelman that the Bird family were farmers and they were one of the most prominent farming families in southwest Kansas. Russell Bird testified that he was a resident of Ellington, Missouri, a farmer, 22 years of age and married. He stated his net worth during the months of September and October, 1970, was approximately $6,000, and that he was working for wages at Moscow, Kansas, for $550 per month. He stated for the year 1970 his gross wages totaled $7,158, and for the year of 1969 his gross wages totaled $5,059. Roger Bird is the brother of Russell. The only thing in the record concerning Roger is that he accompanied Russell and his father to see the South Dakota ranch on the second visit. Randall Bird is the father of Russell and Roger. Randall testified he farmed approximately 5,000 irrigated acres of land in southwest Kansas, and he was a stockman and owned a feed lot with a 2,000 head capacity. Throughout the record there is confusion concerning the dates upon which events transpired. The record establishes the South Dakota ranch was shown to Russell Bird sometime during the middle of September 1970, and to Randall Bird, Russell Bird and Roger Bird on the second visit, which apparently occurred September 24, 1970. Mr. Winkelman was the only other person with the Birds on these trips. When Mr. Winkelman told Mr. Allen the Birds wanted to inspect the South Dakota ranch a second time and sought his permission to view the property, Mr. Winkelman told Mr. Allen that Russell Bird wanted to show the place to his father and brother and that they would be working in a “partnership type thing”. On the return trip from South Dakota on the second occasion, September 25, 1970, Russell Bird offered Mr. Winkelman $320,000 for the South Dakota ranch upon terms discussed during the return trip. The next day, September 26, 1970, Mr. Winkelman together with with Randall Bird and Russell Bird met with Mr. Allen at his farmyard. This was the only occasion Allen conferred with the Birds during the entire negotiations. Mr. Winkelman testified that it was on or about the evening of the 26th day of September, 1970, that a figure of $340,000 was discussed with Mr. Allen and that Mr. Allen was informed that Mr. Winkelman (the Thunderdbird Agency) ‘had a check for $1,000.00 as earnest deposit to hold on to it.” He then asked Allen ‘how he wanted it paid and so on and so forth to see if the sale could be worked out.” Mr. Winkelman also testified that on the way back from the second trip to South Dakota, on or about October 6,1970, Russell Bird made an offer of $320,000 with $20,000 down and the purchaser to make payments in an amount sufficient to meet the Prudential Insurance Company mortgage payments, and to pay Mr. Allen $5,000 per year on his equity, plus interest on the unpaid portion of his equity, for ten years with the balance due and payable at that time. This offer was made after Russell conferred with his father and brother on the way back from South Dakota. Prior to Mr. Winkelman talcing the Birds to South Dakota on the second occasion he had consulted with Mr. Allen and had his own attorney prepare a contract which is marked defendant’s Exhibit No. 1. This exhibit is a typewritten contract of sale. It has a blank space for the date, a blank space for the description of the real estate and blank spaces in the paragraph providing for the terms of payment of the remaining balance of $300,000. The significance of this exhibit is that the seller is described as J. R. Allen and the buyers are collectively described as “BELLA FOURCHE RANCH, INC., (a corporation to be formed)”. At the end of this typewritten contract of sale is a blank space for the seller’s signature and three blank spaces for the signatures of the buyers followed by “BELLA FOURCHE RANCH, INC.” with a blank space for the signature of the one signing for the corporation to be formed. The purchase price recited in defendant’s Exhibit No. 1 is $320,000, to be paid in the following manner: » e * e # “a. Down payment of Twenty Thousand Dollars ($20,000.00), of which One Thousand Dollars ($1,000.00) receipt of which is hereby acknowledged, shall be deposited with Thunderbird Agency Trust Account, Agent for SELLER, as earnest money, and Nineteen Thousand Dollars ($19,000.00) shall be paid upon approval of title or possession date whichever comes first. “b. The remaining balance of Three Hundred Thousand Dollars ($300,-000.00) to be paid — etc etc. . . .” In the blank space following is written in pen: “$9,500.00 principal per year ($4,500 Ins. $5,000 Allen) plus int. of 6% on-unpaid balance to Allen and 7/1% int on unpaid balance to Prudential Ins. Co. not to exceed 10 yrs to Allen, at which time entire balance to him to be paid and Ins. Co. Loan to be assumed.” The mortgage carried by the Prudential Insurance Company on the ranch was indicated in the record to be $151,000. This indebtedness was to be paid at the rate of $4,500 principal per year and 7/2% interest on the unpaid balance. Mr. Winkelman testified the defendant’s Exhibit No. 1 is the only contract of sale document that he ever discussed with Mr. Allen. When the reduced price was discussed by Mr. Winkelman with Mr. Allen he told Allen his commission would be $15,000. Allen would not agree to the payment of this sum out of the $20,000 down payment, and Mr. Winkelman finally said he would take $10,000. The matter was left open when Mr. Allen said the payment could be negotiated later. At the beginning of the farmyard meeting on the 26th day of September, 1970, Mr. Allen assumed he was dealing with a qualified purchaser — namely, Randall Bird and his son. It was at this meeting Randall Bird informed Mr. Allen he was not going to sign the contract with his son Russell. James Cook, president of the Peoples National Bank, Liberal, Kansas, testified he had advised Randall Bird not to sign a contract of purchase for the South Dakota ranch because he did not believe it would be advisable to have a contingent liability. This statement was made by Cook after he testified concerning a consultation with Russell Bird and Randall Bird, wherein he gave a verbal commitment to Russell Bird of $20,000 as the down payment for the purchase of the South Dakota ranch, upon the condition that Randall Bird would sign a continuing guarantee for Russell’s indebtedness to the bank. At the farmyard meeting on the 26th day of September, 1970, Winkelman testified he told Allen that Russell Bird was tendering an offer to buy the ranch for $320,000, with $20,000 down on the terms previously indicated. Allen, having been informed that Ran- dab Bird was not going to sign the contract, said to Russell Bird, “Boy, I don’t think you can make it”. Thereafter Russell Bird replied that he believed that he could “make it”. Conversation, and negotiations continued for some period of time that afternoon. Indications in the record are that the parties were at the Allen farmyard from one and one-half to two and one-half hours. When Mr. Allen was asked in the course of these negotiations whether there were any terms in the contract which he wanted changed, he replied that he would prefer to receive 5% of the unpaid balance on his equity each year plus interest. Russell Bird was receptive to this change. According to Mr. Winkelman the parties did not discuss the total price, the payment of the mortgage or the down payment at the farmyard meeting of September 26th. When asked what Mr. Allen said, if anything, after Russell Bird agreed to accept the proposed change Mr. Winkelman answered, “He just sort of nodded his head and said ‘Okay, or yeah’, Okay was the word I think he used.” Thereafter Mr. Winkelman had a new contract prepared by an attorney which incorporated the change. This contract is marked plaintiffs Exhibit No. 3 and was prepared by the law firm of Smith and Greenleaf. Mr. Winkelman testified this contract was taken to Allen’s farm and given to a woman believed to be one of Mr. Allen’s daughters with the request to give the contract to Mr. Allen. Mr. Winkelman does not know for certain whether the contract was actually received by Mr. Allen. Mr. Allen testified that he did not receive the contract and knew nothing of it. Subsequently Mr. Winkelman contacted Mr. Allen on several occasions to ascertain whether everything in the contract met with his approval. According to Mr. Winkelman’s testimony the appellant always replied that he had not had a chance to examine it. Mr. Winkelman believed that in the middle or latter part of October 1970, Mr. Allen became reluctant to go ahead with the sale and began to hedge. Mr. Winkelman testified that in the latter part of October 1970, he had a telephone conversation with Mr. Allen concerning a four-wheel drive vehicle being used on Mr. Allen’s Kansas farm, when the parties had agreed it was to go with the South Dakota ranch. Mr. Allen replied that the truck was still his until he sold the ranch and he could do what he wanted with it until that time. Mr. Winkelman testified that he asked Mr. Allen, “is the deal still on?” and Mr. Allen reassured him that it was and not to worry. Mr. Winkelman learned on the 16th day of November, 1970, that Mr. Allen had sold his South Dakota ranch to a Mr. Koebler from Lincoln, Nebraska, for the sum of $40 per acre. Thereafter, Mr. Winkelman on the 18th day of November, 1970, had Russell Bird execute a purchase contract (plaintiff’s Exhibit No. 3) by signing it, which contained all of the terms claimed by Mr. Winkelman to have been agreed upon by the parties. At the same time Russell Bird made a $19,000 check payable to the Thunderbird Agency as the balance of the down payment on the ranch. Both the contract and this check were given to Mr. Winkelman, who was holding the $1,000 earnest money check made payable to the Thunderbird Agency. On the same day Russell Bird and Mr. Winkelman went to Allen’s farm and talked with him in the field where he was working cattle. Mr. Winkelman approached Mr. Allen and advised him that he had an executed contract, a buyer (Russell Bird) and the down payment. He then asked Mr. Allen to sign the contract, and Mr. Allen refused. Mr. Allen testified Mr. Koebler agreed to purchase the ranch by contract dated October 1, 1970, and executed on October 5, 1970, for the sale price of $356,920. Two days thereafter, on November 20, 1970, Mr. Winkelman filed suit against Mr. Allen for his commission. Subsequently, Russell Bird also filed suit against Mr. Allen for damages. An effort to have these two actions consolidated was denied by the trial court. There is sharp conflict in the testimony between Mr. Winkelman and Russell Bird on the one hand, and Mr. Allen on the other, concerning whether the parties had agreed upon the terms of sale. The record indicates various matters included in the written contracts were never the subject of testimony by the witnesses at the trial. The only place these terms are found is in the typewritten contracts introduced at the trial. For example, plaintiff’s Exhibit No. 3 includes two tractors which are described in detail, a two-wheel trailer with stockrack, a working chute, and a 1963 IHC four-wheel drive pickup. There is nothing in the record to indicate any discussion concerning this personal property other than the broad statement of Russell Bird that “certain personal property” was to go with the sale of the South Dakota ranch, and in particular a 1963 International four-wheel drive pickup. The discrepancies in the tetstimony were all submitted to the jury and resolved against Mr. Allen, and for purposes of tbis appeal it is unnecessary to devote further attention to them. The general rule is that a real estate agent or broker is entitled to a commission if (a) he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal; (b) he is the efficient and procuring cause of a consummated deal. (DeYoung v. Reiling, 165 Kan. 721, 199 P. 2d 492, Syl. ¶ 1; Patee v. Moody, 166 Kan. 198, 199 P. 2d 798; and Hiniger v. Judy, 194 Kan. 155, 398 P. 2d 305.) In Hiniger v. Judy, supra, it was said that the conditions specified in both (a) and (b) above must be met before the real estate broker is entitled to a commission. The condition specified in (b), however, is subject to a qualification where failure in completion of the contract, or closing title, results from the wrongful aot or interference of the seller. (Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528, 236 A. 2d 843, 30 A. L. R. 3d 1370 [1967].) We are not concerned on this appeal with a discussion of the appellant s rights to sell his property through another broker, where a non-exclusive listing of the property is given, because the trial court instructed on these matters without objection as follows: * s * » * “Instruction No. 4 “If the Defendant prior to the Plaintiff’s notifying him that he had a purchaser ready, able and willing to buy, in good faith sold the land to another customer, the Plaintiff cannot recover. In order for the Plaintiff to recover, the burden is upon him to prove that he obtained a customer who was ready, able and willing to meet the terms offered by the Defendant prior to the sale of the land to another, and so notified the Defendant of that fact. One giving a real estate broker authority to sell his property upon terms stated, but not expressly agreeing that such real estate agent shall have the exclusive right to sell, retains the right to effect a sale personally or through another agent, and the owner may enter into an agreement to sell which will be effectual at any time before he has actual notice that a purchaser has been procured who is ready, able and willing to purchase under the terms of the listing. “Instruction No. 5 “If you find that the Plaintiff produced a ready willing and able purchaser upon terms acceptable to Defendant, then you must return a verdict in favor of the Plaintiff in the amount of commission agreed by the parties. “If you find that the Plaintiff did not produce an able, ready or willing buyer or that the terms of the sale were not agreed to by said buyer and the Defendant, then you must find for the Defendant.” By giving credence to the findings of the jury relative to the conflict in the testimony, we must direct our attention on appeal to whether Mr. Allens refusal to execute the contract with Russell Bird was the result of Mr. Allen’s wrongful act or interference. This leads us directly to a consideration of whether Russell Bird was a qualified purchaser — the point upon which the seller, Mr. Allen, sought to defend in this action. The term “able” in the general rule that entitles a real estate agent or broker to a commission, if he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal, in the context of the rule means more than mere mental competence to make a contract or physical ability to sign it. We have been cited to no Kansas cases dealing with the subject and our research on the point has been unavailing. We therefore must resort to decisions from other jurisdictions to analyze the point. This situation is brought about probably because it was so plain that financial capacity was the primary ingredient of the word. Our opinions appear to have given no consideration to the matter of the buyer’s financial ability to complete the transaction by paying the agreed price and taking title to the premises. Nothing has been said specifically as to whether it is any part of the broker’s obligation to present a financially capable buyer, nor has anything been said that by producing the buyer the broker impliedly represented he was able, in the financial sense, to perform. Many jurisdictions leave no doubt that “able” refers to the financial ability of the broker-produced purchaser to complete the transaction. In cases where the broker sued the owner for commission because of alleged unreasonable refusal to¡ enter into a contract of sale with the proffered willing and able customer, it was held that as a condition precedent to recovery, the broker was required to establish that his customer was financially able not only to make the Initial payment required on execution of the contract, but also to have available the requisite funds to complete the undertaking at the time fixed for performance. (Ellsworth Dobbs, Inc. v. Johnson, supra, and the many authorities cited therein.) The ability to buy refers to the financial ability of the purchaser. A prospective buyer meets the legal standard of “ready, willing and able” to buy, although he does not have the cash in hand, if he is able to command the necessary funds to complete the purchase within the time allowed by the offer. (C. O. Frick Co. v. Baetzel, 71 Ohio App. 301, 47 N. E. 2d 1019 [1942]; and Walton v. Hudson, 82 Ohio App. 330, 79 N. E. 2d 921 [1947].) While the authorities are not in agreement as to the degree of proof required to show financial ability to pay, most authorities do not require the purchaser to have in his possession the funds necessary to close the deal at the time the contraot is entered into. But it must be shown that the purchaser is able to command the necessary funds to close the deal on the date agreed upon. (Walton v. Hudson, supra.) The term command is important. The word command means “To have control of” (Webster’s International Dictionary 2d Ed.). The oases uniformly hold that the purchaser cannot show ability by depending upon third persons in no way bound to furnish the funds. (Welch v. New York, C. & ST. L. R. CO., 5 Ill. App. 2d 568, 126 N. E. 2d 165.) A purchaser without the ability to finance the purchase is no purchaser at all. Where the only available source from which the greater part of the money is to come to make the purchase possible is, to knowledge of the broker, admittedly in the ownership and possession of a third person, and its use in the interest of the purchaser is subject to the gratuitous consent of such third person who is in no way bound by or a party to the purchase agreement, such a purchaser cannot be considered one able to buy the principal’s property. Such funds cannot be considered assets of the purchaser. (McGarry v. McCrone, 97 Ohio App. 543, 118 N. E. 2d 195; Morere v. Dixon Real Estate Co., 188 So. 2d 623 [La. App. 1966], and the many authorities cited therein; and DeHarpport v. Green, 215 Or. 281, 333 P. 2d 900 [1959].) An excellent discussion of the purchaser’s financial ability to buy in connection with a real estate transaction is made by the Supreme Court of Minnesota in Shell Oil Co. v. Kapler, 235 Minn. 292, 50 N. W. 2d 707 (1951), where the court said: # # # # # “Rules for testing a purchaser s financial ability to buy are not to be reduced to any unyielding formula, but must be flexible enough to accomplish their purpose according to the particular facts of each case. In ascertaining the rules reflected by an endless variety of cases, it is particularly important to bear in mind that no decision is authoritative beyond the scope of its controlling facts. Difficulty in both stating and applying the rules stems principally from a failure to keep in mind that their purpose — the protection of good-faith sellers as well as of bona fide purchasers, brokers, and other persons similarly situated — is to establish a purchaser’s financial ability to buy with reasonable certainty. A purchaser may not have the necessary cash in hand, but that alone, it is rec ognized, does not disqualify him if he is otherwise so situated that he is reasonably able to command the requisite cash at the required time. On the other hand, the seller is not required to part with his property to a purchaser whose financial ability rests upon nothing more than shoestring speculation or upon attractive probabilities which fall short of reasonable certainty. In short, the rules are designed to protect the seller by binding him to a sale only where there is a reasonable certainty of the purchaser s financial ability to pay and, on the other hand, to protect the purchaser — and persons similarly situated— from a technical, insubstantial, or sharp-dealing disqualification. “2-3. Generally speaking, a purchaser is financially ready and able to buy: (1) If he has the needed cash in hand, or (2) if he is personally possessed of assets — which in part may consist of the property to be purchased — and a credit rating which enable him with reasonable certainty to command the requisite funds at the required time, or (3) if he has definitely arranged to raise the necessary money — or as much thereof as he is unable to supply personally — by obtaining a binding commitment for a loan to him for that purpose by a financially able third party, irrespective of whether such loan be secured in part by the property to be purchased. Although no precise line of demarcation between the application of the second and third divisions of the above rule can be laid down for all cases, it is clear — in the light of the purpose of the rule — that where the purchaser relies primarily, not upon his own personal assets, but upon the proceeds of a contemplated loan or loans to me made to him by a third party, he is financially able to buy only if he has a definite and binding commitment from such third-party loaner. Even though the third party is financially able, his promise is of no avail unless made for an adequate consideration. A purchaser who personally has little, if any, cash or other assets must establish that the financial crutches to be loaned him by others are both legally and financially dependable.” (pp. 297, 298, 299.) In Potter v. Ridge Realty Corporation, 28 Conn. Supp. 304, 259 A. 2d 758 (1969) tibie purchaser was solely dependent upon third persons who were in no way bound to furnish him funds to qualify as an able purchaser. There the court said that even if the parents of the purchasers wife had in fact been shown to have had funds available to take over and assist in the transaction, entirely or a necessary part, the purchaser still would not qualify for the status of an “able” purchaser within the meaning of the rule. Turning now to the facts in the instant case, it was established by the testimony of Russell Bird himself that the two checks given by him to the Thunderbird Agency (the $1,000 earnest money check and the $19,000 check for the balance of the down payment) at the time they were tendered by the appellee to the appellant on November 18, 1970, were not covered by funds on deposit in the bank upon which they were drawn. In other words, the clearance of these checks through the bank was dependent upon further action by Randall Bird, the father of Russell Bird, to guarantee and cosign the notes of Russell for the loans at the Plains State Bank upon which they were drawn. Arrangements had previously been made at the Plains State Bank in Plains, Kansas, where the cashier, Mr. Bender, had “tentatively agreed” to make a loan for the down payment in the amount of $20,000, and similarly the bank had “tentatively agreed” to see Russell Bird through the first year and loan him approximately $8,000 for living expenses. At the time of the tender to the appellant no legally binding commitment had been made by either Russell Bird or Randall Bird at the Plains State Bank for the money to cover these checks. Analyzing the terms of the contract set forth in plaintiff’s Exhibit No. 3, Russell Bird was obligated to pay on the Prudential Insurance Company of America’s first mortgage, in the amount of $151,000, $4,500 principal per year plus interest in the amount of TA% on the unpaid balance. On the $149,000 balance due to the appellant Russell Bird would be obligated the first year to pay $8,940 interest and $7,450 principal. The grand total of fixed obligations due under the contract of purchase for the first year, therefore, would be $32,215, in addition to the $20,000 down payment Russell Bird was obligated to borrow, and for which he had no binding commitment. The testimony was that 1,700 head of cattle would be put on the South Dakota ranch after its purchase. If Russell Bird were to pinchase these cattle, presumably stacker cattle, they would in all likelihood cost a minimum of approximately $200 per head, for a total of $340,000. All of this would have to be borrowed capital. If this court could take judicial notice of interest rates for the year of 1971, the interest rate would exceed 8% on $340,000. It is to be noted the contract of sale, marked defendant’s Exhibit No. 1, had penned notations with respect to the payment of the remaining balance of $300,000, indicating that the Prudential Insurance Company mortgage would not be assumed by the buyer until after the payment of the first ten annual installments were paid to the appellant. This was the only written document admitted by the appellee to have been discussed with the appellant. In the appellant’s attempt to defend this action on the ground that Russell Bird was not a qualified purchaser, he was asked by his counsel on direot examination whether he considered Russell Bird, the son, as a qualified buyer. Opposing counsel objected to such testimony on the ground that if invaded the province of the jury, and the trial court sustained the objection, thereby precluding the appellant from testifying on the subject. This was. highly prejudicial to the appellant in the trial of this lawsuit. Similarly the appellant’s expert witness, Mr. Richard Wood of Erie, Kansas, president of the Kansas Association of Realtors, at the last minute could not be present for trial. The weather had closed in and made travel to the place of trial either by road or air impossible. The appellant’s counsel by motion requested a one day continuance which the trial court denied. The appellant’s counsel then requested sufficient time to prepare an affidavit as to the testimony of his absent expert witness as required by K. S. A. 60-240 (c). This motion was presented on the last day of trial after the appellee had presented his evidence and there was no opportunity to prepare the affidavit without leave of court. The trial court denied counsel for the appellant his only opportunity to file an affidavit. The appellant argues in his brief that it was crucial to his case that expert testimony be presented as to the standards of the real estate industry concerning a “qualified buyer” of both farm and ranch lands. The appellant contended in his. petition and it is set forth in the pre-trial order that the prospective purchaser, Russell Bird, a person 22 years of age with a net worth of $6,000 was in no way a qualified buyer. The trial court’s denial of the appellant’s motion was on the ground that the appellant had not subpoenaed Mr. Wood. Mr. Wood was not a hostile witness but a willing witness who volunteered to come without the issuance of a subpoena. We think this ruling of the trial court further prejudiced the appellant in the trial of this lawsuit. The foregoing rulings, of the trial court substantially efiminated or reduced the effectiveness of the defense that Russell Bird was not a qualified buyer within the standards of the real estate industry, and that he was not considered a qualified buyer at the time by the appellant. The appellant was also prejudiced when his motion, termed a motion In Limine, was overruled. The written contract identified as plaintiffs Exhibit No. 3 was prepared by the law firm of Smith and Greenleaf according to the testimony of the appellee before the jury. This either appeared to the jury, or could have appeared to the jury, that the firm of Smith and Greenleaf, who was representing the appellant at the trial in this case, had prepared the contract as an attorney for the appellant in the sequence of events. This was not the case. At the time Smith and Greenleaf prepared plaintiff’s Exhibit No. 3 they were not aware there was a controversy between Winkelman and Allen or between Allen and Russell Bird. At the time the plaintiff’s Exhibit No. 3 was prepared Allen, the appellant, was not represented by counsel. Thus, if it was made to appear to> the jury that the appellant had counsel who prepared plaintiff’s Exhibit No. 3, the chances of the jury believing the testimony of the appellant were substantially reduced. The appellant’s motion was to suppress any and all evidence concerning Winkelman’s seeking counsel of the firm of Smith and Greenleaf in the preparation of any agreements or contracts concerning the sale of subject lands. The motion alleged such evidence would be prejudicial and inflammatory to the defense of Mr. Allen. Failure of the trial court to sustain the appellant’s motion In Limine to avoid giving the jury this impression was prejudicially interjected into a lawsuit. This evidence is made even more prejudicial when Mr. Winkelman testified that a “smooth agreement” was prepared. It is argued by the appellee that the appellant accepted Russell Bird as a purchaser on the 26th day of September, 1970, at the farmyard meeting between the parties. Therefore, it is argued Russell Bird’s qualifications to purchase the ranch and his financial means to do so are immaterial. The appellee cites no authority whatever for the position taken in his brief that not only was Russell Bird a qualified buyer, but that Mr. Allen accepted him as a qualified buyer. An analysis of oases from other jurisdictions clearly indicates that the rule regarding the acceptance of a prospective buyer by the owner is undergoing change. The leading oase on the subjeot which has been followed or approved by numerous other jurisdictions in this country is Ellsworth Dobbs, Inc. v. Johnson, supra. The New Jersey Supreme Court changed its earlier rule in a well reasoned opinion stating as follows: “The early cases in our State implicitly imposed on the owner the burden of inquiry or investigation of the financial ability of the person produced as a prospective buyer. They said that if the owner accepted the purchaser brought by the broker and executed a contract to sell to him, that ended the matter as far as the broker’s right to commission was concerned. For example, in Courter v. Lydecker, 71 N. J. L. 511, 513, (Sup. Ct. 1904), where the purchaser defaulted and title did not pass, the court held the owner liable for commission saying: “ ‘In the present -case the broker obtained a purchaser willing to conclude a bargain upon the terms upon which the broker was authorized to sell, who was acdeptable to — for he was accepted by — the vendor.’ (Emphasis ours.) Likewise in Freeman v. Van Wagenen, supra, [90 N. J. L. 358 (Sup. Ct. 1917)], after referring to the rule that the broker’s burden was ‘no more than to negotiate a sale by finding a purchaser upon satisfactory terms’ the Supreme Court said: ‘This the plaintiff did, the defendants actually accepted Scherer as satisfactory.’ 90 N. J. L., at p. 361. “Later, more unqualified statements began to appear with respect to the effect on the broker’s commission claim of the buyer’s inability to' complete the contract. It was declared that if the broker in good faith produces a prospective purchaser who is accepted by the seller, and a contract of sale made between the two, the purchaser’s ability to perform was no longer open to question. To illustrate, in Matz v. Bessman, 1 N. J. Misc. 5 (Sup. Ct. 1923), the broker produced a buyer who, the court said, was ‘plainly satisfactory’ because the owner contracted with him. When it developed that the buyer was financially unable to take tide, the owner was held responsible for commission because he had ‘accepted’ the buyer, and ‘the broker was not an insurer of either the solvency or the willingness of the customer.’ “In Brindley v. Brook, 10 N. J. Misc. 612, [160 A. 398] (Sup. Ct. 1932) it was said that by contracting with the purchaser presented by the broker, the owner accepted him as satisfactory, and whether the purchaser was able ultimately to comply with the terms of the agreement ‘was of no concern’ to the broker. He had earned his commission. Thereafter a series of cases projected the rule that once the seller accepted a buyer by entering into a contract of sale, he must be considered to have accepted the financial ability of the buyer to perfonn, and the broker, who acted in good faith, was entitled to his commission even though the buyer eventually proved to be financially unable to perform; it is immaterial whose fault it was that the final settlement did not take place. Hatch v. Dayton, 130 N. J. L. 425 (Sup. Ct. 1943); Richard v. Falleti, supra [13 N. J. Super. 534, (App. Div. 1951)]; Winter v. Toldt, supra [32 N. J. Super. 443, (App. Div. 1954)]; Hedden v. Folio, supra [62 N. J. Super. 470, (App. Div. I960)]. “In order to complete the portrayal of the evolution of the current state of the law respecting the right of the real estate broker to commission, it must be noted that all of the cases from Hinds v. Henry through Blau v. Friedman recognize that by the use of appropriate language the owner-seller, in engaging the broker, may make his liability for commission depend specifically upon the closing of title and receipt by the seller of the consideration. The effectiveness and practicability of this as a safeguard measure for the property owner will be discussed hereafter. “[1] We pause at this point to explain that a primary reason for granting certification in this case was to reevaluate the justice and propriety of continuing the legal principles outlined above. Is it just to permit a broker to recover commission from an owner simply because he entered into a contract on mutually agreeable terms with a buyer produced by the broker, when it later develops that the buyer cannot or will not complete the transaction by closing the title? We do not think so. “A new and more realistic approach to the problem is necessary. “There can be no doubt that ordinarily when an owner of property lists it with a broker for sale, his expectation is that the money for the payment of commission will come out of the proceeds of the sale. He expects that if the broker produces a buyer to whom the owner’s terms of sale are satisfactory, and a contract embodying those terms is executed, the buyer will perform i. e. he will pay the consideration and accept the deed at the time agreed upon. Considering the realities of the relationship created between owner and broker, that expectation of the owner is a reasonable one, and, in our view, entirely consistent with what should be the expectation of a conscientious broker as to the kind of ready, willing and able purchaser his engagement calls upon him to tender to the owner. “[2] The present New Jersey rule as exemplified by the .cases cited above is deficient as an instrument of justice. It permits a broker to satisfy his obligation to the owner simply by tendering a human being who is physically and mentally-capable of agreeing to buy the property on mutually satisfactory terms, so long as the owner enters into a sale contract with such person. The implication of the rule is that the owner has the burden of satisfying himself as to the prospective purchaser’s ability, financial or otherwise, to complete the transaction; he cannot rely at all on the fact that the purchaser was produced in good faith by the broker as a person willing and able to buy the property. Once he enters into a contract of sale with the broker’s customer, he is considered to have accepted the purchaser as fully capable of the ultimate performance agreed upon. If it later appears that the purchaser is not financially able to close the title, or even that he never did have the means to do so, the owner must pay. the. broker his commission, so long as he acted in good faith. Such a rule, considered in the context of the real relationship between broker and owner, empties the word ‘able’ of substantially all of its significant content and imposes an unjust burden on vendors of property. It seems to us that fairness requires that the arrangement between broker and owner be interpreted to mean that the owner hires the broker with the expectation of becoming liable for a commission only in the event a sale of the property is consummated, unless the title does not pass because of the owner’s improper or frustrating conduct. “[3] The principle that binds the seller to pay commission if he signs a contract of sale with the broker’s customer, regardless of the customer’s financial ability, puts the burden on the wrong shoulders. Since the broker’s duty to the owner is to produce a prospective buyer who is financially able to pay the purchase price and take title, a right in the owner to assume such capacity when the broker presents his purchaser ought to be recognized. It follows that the obligation to inquire into the prospect’s financial status and to establish his adequacy to fulfill the monetary conditions of the purchase must be regarded logically and sensibly as resting with the broker. Thus when the broker produces his customer, it is only reasonable to hold that the owner may accept him without being obliged to make an independent inquiry into his financial capacity. That right ought not to be taken away from him, nor should he be estopped to assert it, simply because he ‘accepted’ the buyer, i. e., agreed to convey to him if and when he paid the pinchase price according to the terms of the contract. In reason and in justice it must be said that the duty to produce a purchaser able in the financial sense to complete the purchase at. the time fixed is an incident of the broker’s business; so too, with regard .to any other material condition of the agreement to purchase which is to be performed at the closing. In a practical world, the true test of a willing buyer is not met when he signs an agreement to purchase; it is demonstrated at the time of closing of title, and if he unjustifiably refuses or is unable financially to perform then, the broker has not produced a willing buyer. “A lucid and realistic explanation of the relationship between an intending vendor of real property and the broker appears in the opinion of Denning, L. J. in Dennis Reed, Ltd. v. Goody, [1950] 2 K. B. 277, pp. 284-285, 1 All Eng. Rep. (1950) 919, 923: “ ‘When a house owner puts his house into the hands of an estate agent, the ordinary understanding is that the agent is only to receive a commission if he succeeds in effecting a sale; but if not, he is entitled to nothing. That has been well understood for the last 100 years or more. * * * The agent in practice takes what is a business risk: he takes on himself the expense of preparing particulars and advertising the property in return for the substantial remuneration — reckoned by a percentage of the price — which he will receive if he succeeds in finding a purchaser. * * * (pp. 545, 546, 547, 548, 549.) Some jurisdictions have always had the rule announced in Ellsworth Dobbs, Inc. v. Johnson, supra. (See Anno. 74 A. L. R. 2d 437, 452.) Other jurisdictions ¡are following New Jerseys lead. Decisions which have either adopted or expressly approved Ellsworth Dobbs, Inc. v. Johnson, supra, are: Setser v. Commonwealth, Inc., 256 Or. 11, 470 P. 2d 142 (1970); Staab v. Messier, 128 Vt. 380, 264 A. 2d 790 (1970); Potter v. Ridge Realty Corporation, supra; Rogers v. Hendrix, 92 Idaho 141, 438 P. 2d 653 (1968); and Mullenger v. Clause, 178 N. W. 2d 420 (Iowa 1970). For a comprehensive discussion of the New Jersey case see Note, 23 Rutgers L. Rev. 83 (1968); Note, 9 Ariz. L. Rev. 519 (1968); Note, 17 Cath. U. L. Rev. 487 (1968); and Note, 10 Wm. & Mary L. Rev. 240 (1968). We are persuaded by the cogent reasoning in Ellsworth Dobbs, Inc. v. Johnson, supra, and adopt the rules stated in the above quoted portion thereof as the law in Kansas. On the facts in the instant case the appellant did not sign the contract tendered 'by the appellee. Factually, therefore, the case presently before us does not involve an executed contract wherein the purchaser subsequently defaults because he is financially unable to perform. But in either situation the broker is obligated to produce a qualified purchaser before he is entitled to a commission. The argument that the appellant “accepted” Russell Bird during the course of negotiations, and in particular on the 26th day of September, 1970, when the appellee claims the appellant accepted him as a purchaser, is not availing to the broker, Mr. Winkelman. The “acceptance” of Russell Bird by the appellant did not constitute a waiver on the appellant’s part of the financial ability of Russell Bird to purchase the property. The burden is upon the appellee, the broker, to show that he has produced an able buyer in the financial sense. Accordingly,, the appellant is not estopped to assert in defense of this action that Russell Bird was not a qualified purchaser. The trial court properly instructed the jury the burden of proof was upon the broker “to prove that he obtained a customer who was ready, able and willing to meet the terms offered by the defendant prior to the sale of the land to another, and so notified the defendant of that fact.” The jury was also instructed that if the broker “did not produce an able, ready and willing buyer” the jury must find for the defendant, Mr. Allen. The jury was given no instruction concerning an “acceptance” of the prospective purchaser by the owner. Mr. Winkelman,, the appellee, admitted in his testimony on cross-examination that when the appellant orally listed his South Dakota ranch with him for sale he agreed to find a qualified buyer, which meant “someone able to handle it.” Accordingly, under the foregoing rules and upon the record here presented, the appellee did not, as a matter of law, produce a prospective purchaser who was qualified financially to handle the transaction. The appellee by his own evidence on the trial of this action failed in his burden of proof on this point. The trial court should have entered judgment for the defendant, Mr. Allen, on his motion for a directed verdict at the close of the plaintiff’s evidence. In view of the foregoing other points asserted by the appellant in his brief for reversal of the judgment have become immaterial. The judgment of the lower court is reversed with directions to enter judgment for the appellant, J. R. Allen. Fontron, J., concurring: It is my feeling that this case should be returned for a new trial. The evidence, as I view it, presents a question of fact as to whether an able qualified buyer was produced in the person of Russell Bird. My conclusion is based largely on the testimony of James Cook, the president of a Liberal bank, and Randall Bird, Russell’s father. Mr. Cook testified he gave Russell a verbal commitment for the $20,000 down payment, while Randall Bird stated on the stand he was going to back his son in the ranching adventure, intended to help him. if need be, was willing to co sign notes or guarantee notes at the bank, and was planning to put some cattle in South Dakota himself. In the face of the foregoing evidence I believe the court goes too far in saying that as a matter of law that Mr. Winkelman failed to produce an able or qualified buyer for Mr. Allen s land. Owsley, J., joins in the foregoing concurring opinion.	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Per Curiam: This is a workmens compensation oase in which the respondent, Reech Aircraft Corporation, and its insurance carrier, Pennsylvania General Insurance Company, appeal from an award by the Sedgwick County District Court (division No. IV) of 25% permanent partial general disability to the claimant, Clifford A. Ross. The claimant has filed a cross-appeal for reinstatement of the 50% permanent partial disability award of die workmens compensation examiner and director. The first point asserted on appeal is that the claim for compensation for occupational disease disability was not made within one year as required by K. S. A. 44-5al7: “. . . If no claim for disability or death from an occupational disease be filed with the workmen’s compensation director or served on the employer within one (1) year from the date of disablement or death, as the case may be, the right to compensation for such disease shall be forever barred. . . .” In July of 1967, the claimant was exposed to polyurethane paints in the course of his employment with the respondent. Shortly thereafter he began to cough, his eyes burned, and he had sore throats and headaches. He consulted five physicians over the next two and one-half years including the company doctor. Various diagnoses were given, such as the flu, a cold, or bronchitis. Finally, he was sent to the University of Kansas Medical Center in January 1970. It was then ascertained that his condition was caused by exposure to the chemical toluene diisocyanate, a component of polyurethane paint. This was the first information received by the claimant as to what his trouble really was. K. S. A. 44-5a04 provides: ". . . ‘[Disablement’ means the event of an employee or workman be coming actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which injuriously exposed to the hazards of such disease, . . The evidence is that claimant became “actually incapacitated” only after he ascertained the cause of his condition in January 1970. His cause of action then arose. Ross’s claim was filed on July 20, 1970. The district court, director, and examiner each found from the evidence that the claim was timely filed. The respondent next claims that since the evidence shows the claimant’s earnings were more after the occupational disability than before, the award should be canceled pursuant to K. S. A. 44-5a04. (Citing, Knight v. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, 435 P. 2d 3.) K. S. A. 44-5a04 states: “. . . If the director shall find that the workman has returned to work for the same employer in whose employ he was disabled . . . and is capable of earning the same or higher wages than he did at the time of the disablement, or is capable of gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of disablement . . . the director may cancel the award and end the compensation.” In Hill v. General Motors Corporation, 214 Kan. 279, 519 P. 2d 608, we said: “. . . The statute in question (44-5a04) requires the director to make certain findings before he may cancel an award of compensation. The last sentence of that statute provides, ‘. . . the director may cancel the award and end the compensation.’ (Emphasis ours.) This sentence does not command the director to automatically terminate the award, rather it vests in him discretionary power to cancel or end the award. . . .” (pp. 282, 283.) The director did not cancel or end the award and the evidence shows no abuse of discretion. The claimant asserts on the cross-appeal that the district court erred in finding only a 25% disability, rather than 50% disability as the examiner and director determined. The district court’s finding was based on the testimony of Dr. Kirby who stated that based upon the claimants testimony, that he continued to experience some of the symptoms of his disability a year after ceasing exposure to the paint, the claimant would probably demonstrate symptoms of lung disease intermittently throughout his life. The doctor opined that claimant’s degree of permanent disability was roughly 20% to 25%, though in time if the claimant develops severe symptoms his disability could be as high as 100%. He then stated, . . The problem then becomes what proportion of the time is he 20% disabled and what proportion of the time is he 100% disabled.” On cross-examination the doctor stated the claimant might be able to engage in some occupations which have no exposure to any irritating fumes or chemicals without any disability. The claimant argues that since Dr. Kirby testified there could be times when he would have a high percentage of disability the district court’s finding of 25% permanent partial disability is error. There is no evidence the claimant has ever developed any severe symptoms in his new occupation as an auto mechanic. The district court’s finding allows the claimant the maximum degree of disability ascertained by Dr. Kirby through his testing. Accordingly, the claimants cross-appeal is denied. As the findings of the trial court are supported by substantial competent evidence the judgment is affirmed.	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The opinion of the court was delivered by Schroeder, J.: The question presented for our determination on appeal is whether a fathers guaranty to a bank, covering his sons obligations to the bank, imposes liability upon the father for a debt created by the son’s guaranty for another party at the same bank. The trial court found the guaranty of the father guaranteed the guaranty of the son and imposed liability. Appeal has been duly perfected. The facts have been agreed upon by the parties and stipulated. During the early part of June 1969, Donald Maier (defendant) personally borrowed from the Trego WaKeeney State Bank (plaintiff-appellee) a definite sum of money (not disclosed by the record) evidenced by a note which he gave to the bank. The sum of money personally due and owing by Donald Maier to the bank fluctuated from time to time. At the -time of suit his personal indebtedness was evidenced by a renewal note of the original indebtedness in the amount of $4,500 with interest at 8½%. The renewal note was dated June 21, 1971, and was payable December 18, 1971. Shortly after the original loan was made to Donald by the bank, on June 23,1969, Daniel Maier (defendant-appellant), the father of Donald, executed a guaranty to the bank in consideration for the extension of credit by the bank to Donald. On the 18th day of November, 1970, Challenger Motors, Inc., a Kansas corporation, in which Donald Maier was a stockholder and also secretary-treasurer, executed its note to the Trego WaKeeney State Bank in the sum of $48,000. Daniel Maier had no business contact with the motor company, no stock ownership in the company and his only connection with it was that he was the father of Donald Maier, the co-defendant. On the 6th day of March, 1971, Donald Maier executed a guaranty to the Trego WaKeeney State Bank guaranteeing the Challenger note of November 18, 1970. Joe Spresser, also an officer and stockholder of Challenger Motors, on the same date, signed an identical guaranty to the bank guaranteeing the Challenger note. Spresser was not made a party defendant to this action. The business of Challenger Motors, Inc., failed and its note at the bank was in default. Donald Maier, being without funds, defaulted on his personal note to the bank, and he was financially incapable of making good on his guaranty on the Challenger Motors note. The financial statement filed with the bank by Daniel disclosed his net worth to be $115,270 as of June 25, 1970. The bank sought to collect from Daniel on both notes, Donald’s personal note and the Challenger Motors’ note. On the 15th day of November, 1971, Daniel Maier, after retaining legal counsel, attempted to pay off the Donald Maier note which he had guaranteed. A letter from counsel covering this attempt was introduced in evidence, but the bank refused to accept the tender on the ground that Daniel was obligated on both Donald’s personal note and on the Challenger Motors note which Donald had guaranteed. On the 28th day of March, 1972, suit was commenced on both notes by the bank against Daniel Maier and his son Donald Maier. Both Daniel and his son employed the same attorney and filed their answer. Daniel admitted that his guaranty of June 23, 1969, covered the personal note, and in his answer Daniel confessed judgment thereon, which judgment has been paid as ordered by the trial court without prejudice to Daniel and his right of appeal. In his answer Daniel denied that his guaranty of June 23, 1969, covered the guaranty of Donald dated March 6, 1971, for reasons set forth in his answer. When this aotion was filed the balance due on the Challenger note was $39,402.28 plus interest from March 17, 1972, at 9% per annum. The trial court after hearing the matter and considering argument of counsel held that Daniel Maier, by his guaranty, clearly guaranteed payment to the bank of all liabilities owing to it by Donald Maier, including the personal obligation of Donald Maier arising from his guaranty of the balance due on the note of Challenger Motors, Inc., and rendered judgment for the bank against both Donald and Daniel for $42,553.64 with interest at 9% per annum from March 22, 1973. The trial court, in announcing its decision, made the following comment: “. . . Since the Court found no Kansas decisions directly in point and counsel cited none, the Court is following the general rule of other jurisdictions set out in the annotation beginning at page 1183 of 85 ALR 2nd, although there are some decisions to the contrary.” The guaranty agreements executed by both Daniel and Donald and delivered to the Trego WaKeeney State Bank are identical in form. The instrument is titled “GUARANTY” and is addressed, “TO TREGO WAKEENEY STATE BANK, WAKEENEY, KANSAS :” The first three paragraphs of the guaranty agreement signed by Daniel Maier read as follows: “The undersigned hereby request you to give, and continue to give, Donald Maier (hereinafter styled the ‘borrower’) from time to time as you may see fit, financial accommodations and credit, and in consideration thereof, whether the same had been heretofore given or may hereafter be given by you to said borrower, the undersigned hereby guarantee and promise and agree to make prompt payment to you, as they severally mature, [1] of all overdrafts of said borrower, [2] of all loans made, or which may be made by you to said borrower, [3] of all moneys paid by you for the use or account of said borrower, and [4] of all notes, acceptances and other paper which have been or may be discounted for, or at the request of, said borrower, whether made, drawn, accepted, endorsed or not endorsed by said borrower, and whether endorsed with or without recourse, and [5] of any and. all other obligations, of every kind and character, now due or which may hereafter become due from said borrower to you, howsoever created, arising or evidenced, and also of any and all renewals or extensions of any of the foregoing (all hereinafter called ‘Liabilities’) regardless of other collateral now held by you, or which you may hereafter acquire, as additional security to any or all of the Liabilities of said borrower. “It is understood that extensions of time of payment, or renewals of any of the Liabilities shall not in any way impair ihe liability of the undersigned hereunder, and that the undersigned will keep posted as to all matters pertaining to this guaranty without notice from you. “When any of the Liabilities shall become and remain due and unpaid, the undersigned will, upon demand, pay the amount due thereon.” (Emphasis added.) The numerals in brackets and the emphasis in the guaranty quoted above have been added to facilitate further discussion of the guaranty agreement in this opinion. The appellee argues that a written promise to pay any debt of another, without specifying the nature or limitation of such debt, renders the maker of such an instrument liable for payment of the principal’s debt even though the principal is only secondarily liable (Citing, K.S.A. 84-3-416 [3]). The appellee contends Daniel by reason of his guaranty agreed to pay any indebtedness due the bank from Donald, and Donald by reason of his guaranty given to the bank was personally liable to the bank for payment of the amount due on the Challenger Motors note. In advancing this argument the appellee relies upon the provisions immediately preceding clause [1] wherein the guarantor promises to make payment to the bank, as they severally mature, of the obligations of the borrower enumerated thereafter. Among these obligations is clause [5] upon which the bank relies. The trial court relied upon Fannin State Bank v. Grossman, 30 Ill. App. 2d 484, 175 N. E. 2d 268, 85 A. L. R. 2d 1178 (1961), for its decision. There an action was brought on a guaranty given to a bank to recover on the principal debtor’s personal endorsement of a note given to the bank by a corporation of which he was president. The court held a guaranty given to a bank on behalf of an individual covering any credit granted “to him alone or to him and others” and guaranteeing “all indebtedness and liability of every kind, nature and character” includes his liability as an endorser on a note given to the bank by a corporation o£ whioh he is president; and that the guaranty covers both primary and secondary liabilities. The guaranty in the Fannin case is distinguishable from the one here. There the guaranty given to the bank covered credit given by the bank to the borrower named in the guaranty alone “or to him and others”. Here, Donald is the only person whose credit is covered by the guaranty of Daniel. Furthermore, the opinion in Fannin does not indicate there was a specific enumeration of the obligations of the borrower to the bank. The appellee also relies upon language in Fannin to the effect that the word ‘borrower” used in the guaranty was merely a term of convenience and was not intended to define the extent of the guaranty. For the reasons hereafter assigned we think the position taken by the appellee herein and the trial court lacks merit. A guaranty in its technical sense is collateral to the principal contract which is guaranteed; and the guarantor s liability is secondary rather than primary or original (38 C. J. S., Guaranty, § 2, p. 1130.) A guaranty is a contract between two or more persons, founded upon consideration, by which one person promises to answer to another for the debt, default or miscarriage of a third person, and, in a legal sense, has relation to some other contract or obligation with reference to which it is a collateral undertaking. The contract of a guarantor is his own separate contract. It is in the nature of a warranty by him that the thing guaranteed to be done by the principal shall be done, and is not an engagement jointly with the principal to do the thing. A guarantor, not being a joint contractor with the principal, is not bound like a surety to do what the principal had contracted to do, but answers only for the default of the principal. The original contract of his principal is not his contract. (Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 299 P. 2d 72, 58 A. L. R. 2d 1265, and authorities cited therein.) Despite what appears to be an argument by the appellee that Donald’s obligation on the Challenger Motors note is primary, the document with which we are here concerned is entitled and headed “GUARANTY”. In paragraph three it specifically states: “When any of the Liabilities shall become and remain due and unpaid, the undersigned will, upon demand, pay the amount due thereon.” Donald’s liability on the Challenger Motors note therefore by reason of his guaranty to the bank is secondary. This court has recently said a guarantor’s liability upon an obligation cannot be extended by implication, and he should not be held beyond the precise terms of his contract. (Kutilek v. Union National Bank of Wichita, 213 Kan. 407, 516 P. 2d 979.) A contract of guaranty is to be construed, as other contracts, according to the intention of the parties as determined by a reasonable interpretation of the language used, in the light of the attendant circumstances. After the intention of the parties or the scope of the guarantor’s undertaking has been determined by application of general rules of construction, the obligation is strictly construed and may not be extended by construction or implication. (38 C. J. S., Guaranty, § 38 pp. 1177, 1181.) In the instant case the guaranty of Donald was executed and delivered to the bank 23 months after the guaranty of his father, Daniel, was executed and delivered to the bank. Turning now to the language in the first paragraph of the guaranty heretofore quoted, Daniel Maier in consideration for the bank giving credit to his son Donald, the borrower, guaranteed the payment of Donald’s obligations to the bank. These obligations were enumerated in five separate clauses, as numbered. Each of the first four enumerations are specific. They pertain to overdrafts, loans, moneys paid by the bank to Donald and all notes, acceptances and other paper discounted for Donald. These obligations of Donald, the borrower, to the bank are all primary obligations in the first instance. The fifth enumerated clause is a catch-all. It is general and reads: “of any and all other obligations, of every kind and character, now due or which may hereafter become due from said borrower to you, howsoever created, . . .” (Emphasis added.) The rule of ejusdem generis is a well known maxim of construction to aid in ascertaining the meaning of a statute or other written instrument which is ambiguous. Under the maxim, where enumeration of specific things is followed by a more general word or phrase, such general word or phrase is held to refer to things of the same kind, or things that fall within the classification of the specific terms. (Bumpus v. United States, 325 F. 2d 264 [10th Cir. 1963]; and The State v. Miller, 90 Kan. 230, 233, 133 Pac. 878.) This rule is stated in Smith v. Russ, 184 Kan. 773, 339 P. 2d 286, as follows: “• • • [W]here there is an uncertainty between general provisions and specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions. (Restatement of Law, Contracts, Volume 1, § 236 [c], p. 330; and 12 Am. Jur., Contracts, § 244, p. 779.) It is a reasonable inference that specific provisions express more exactly what parties intend than broad or general clauses which do not necessarily indicate that the parties had the particular matter in thought.” (p. 779.) Under the foregoing rule other primary obligations of Donald are encompassed under clause [5] and not his liabilities of a secondary type in the first instance. Extending the guaranty under clause [5] to encompass secondary liabilities of Donald would be extending the guarantors liability by implication, contrary to the rule in Kutilek v. Union National Bank of Wichita, supra. We are informed by the parties to this appeal the instant case is one of first impression in Kansas. The appellant states in his brief: “The question is can a guaranty, which is executory, guarantee another guaranty, which is also executory?” Our research discloses an analogous situation was presented in Failing Co. v. Cardwell Investment Co., 190 Kan. 509, 376 P. 2d 892. There the court, after reciting the facts, stated the issue in the case to be as follows: “. . . In substance, the Failing Company seeks to obligate Cardwell for a guaranty Failing made to Tom Ray Field Rentals, Inc. on drill pipe McPeters rented from Tom Ray, admittedly on the force of Cardwell’s guaranty to Failing for purchases made by McPeters through the Failing Company’s Grand Junction store.” (p. 515.) In disposing of the matter against Failing the court quoted the familiar rule that the liability of a guarantor upon an obligation cannot be extended by implication, and he should not be held beyond the precise terms of his contract. There however the decision turned upon the failure of the Failing Co. to give timely notice to Cardwell Investment Co. as it was required to do under Cardwell’s commitment to Failing. In the annotation following Fannin State Bank v. Grossman, supra, at 85 A. L. R. 2d 1183, it is stated: “. . . And to the extent that an endorsement on negotiable paper and a guaranty of payment of the instrument both impose the same secondary liability on the indorser or guarantor, it is thought that there is no reason to distinguish the two situations for purposes of this discussion, the difference being one of form rather than substance. Consequently, the scope of the annotation encompasses questions of a guarantor’s responsibility for his principal’s liability as a guarantor of a negotiable instrument as well as for the principal’s liability as an indorser.” Several cases from other jurisdictions are directly in point. A situation similar to the case at bar is found in National Bank of Commerce v. Rockefeller, 174 Fed. 22, (8th Cir. 1909). There Rockefeller agreed both orally and in writing to guarantee the fiscal affairs of a livestock commission company at the Kansas City livestock terminal. The commission company was incorporated under the laws of Missouri and was managed by one Frank Siegel. The guaranty executed by Rockefeller was a continuing one much like the one in the case at bar. The guaranty was signed by Siegel, Rockefeller and one Swain, personally, and the guaranty was executed in favor of the corporation. Suit was instituted in equity by Rockefeller to contest liability for a $45,000 loan from the bank to the commission company prior to Rockefeller’s execution of the guaranty. The bank contended Rockefeller was hable for the unpaid balance of the $45,000 loan due to renewal notes executed by the commission company after Rockefeller executed his guaranty. The commission company in consideration for the renewal of its notes "pledged notes of other persons as collateral security for their payment”, and the commission company guaranteed their payment by its endorsement in writing on the back of those notes. The bank argued the commission company became hable under its endorsement of the third-party notes, and when the commission company failed financially, Rockefeller was obligated by the terms of his guaranty for this liability. This is the situation presented in the instant case. In denying the bank’s claim the court said: “Moreover, the contention that Rockefeller’s contract of guaranty is elastic, and comprehensive enough to cover the commission company’s guaranty of the payment of the notes which it pledged as collateral for the payment of a debt which was not covered by his guaranty is too subtle to be sound. The parties to this plain and simple contract never could have reasonably contemplated any liability brought about by this circuitous process. Rockefeller’s guaranty was for the payment of debts which the commission company might contract or become hable for. The commission company’s guaranty of the collateral did not constitute a debt. It was an executory contract only. It might or might not ripen into a debt. Unlike a surety, which becomes at once liable unconditionally as original promisor with his principal for a debt, a guarantor becomes hable only in the event of default by the principal, and his liability does not generally attach unless the creditor gives him reasonable notice of the default of the principal, or unless due diligence is exercised to collect from the principal. ... In other words, the contracting of a debt is a single act, resulting in an immediate and unconditional obligation, while the contract of guaranty is complicated, and subject to many conditions which may defeat its enforcement. Obviously a guaranty of a debt is one thing, and the guaranty of a guaranty is another thing. A contract of the former kind only cannot be so construed as to cover the obligation which would be' undertaken by a contract of the latter kind. The contracts of a guarantor are strictissimi juris, and unless a given transaction is brought clearly toithin the obligation of the guarantor no liability is incurred.” (Emphasis added.) (pp. 29, 30.) Similar situations arose in Rohn v. Weld County Bank, 155 Colo. 490, 395 P. 2d 1003 (1964); Tremont Trust Co. v. Fine, 226 Mass. 136, 115 N. E. 319 (1917); and in Staver & Walker v. Locke, 22 Or. 519, 30 Pac. 497 (1892), where the court refused to enforce liability. The Colorado Supreme Court in Rohn v. Weld County Bank, supra, construed a guaranty instrument which extended credit to the guarantor’s husband, who was described as borrower and not as obligor. The terms of the guaranty provided that the guarantor guaranteed the sums of money which the bank might advance to the borrower, and stated it applied to payment of all the borrowers obligations to the bank. The controversy before the court was whether the term “obligations” in the wife’s guaranty included liability on a guaranty executed by the husband, and which he was financially unable to fulfill. Employing the doctrine of ejusdem generis the court held the general term “obligation” did not include the husband’s liability arising out of his personal guaranty; consequently, the wife as guarantor was not held liable on the guaranty executed by her husband. Similarly, here the term “obligations” used in the first paragraph, clause [5], of the ambiguous guaranty instrument of Daniel Maier, described as borrower, must be construed to refer only to the obligations of Donald which are primary in the first instance and not to Donald’s liability under his guaranty of the Challenger Motors’ note at the bank. The judgment of the lower court is reversed.	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Per Curiam: This is a direct appeal in a criminal case. The appellant was convicted by a jury of forgery and uttering a forged instrument in violation of K. S. A. 1973 Supp. 21-3710 and sentenced under the Habitual Criminal Act, K. S. A. 1973 Supp. 21-4504, to imprisonment for a minimum of six years and not more than ten years on each count with the sentences to run concurrently. The appellant, Lee Roy Collins, entered a grocery store to cash a check payable to L. Cummins and signed by Lena Stanfield. The clerk was acquainted with the appellant. The appellant informed the clerk that the lady who signed the check never spelled his name right. The clerk consulted with a superior and informed the appellant that he would have to endorse the check as his name appeared. The appellant endorsed the check, L. Cummins, and the check ultimately proved to be a forgery. At the trial the state introduced the following evidence: The check was not drawn by Lena Stanfield; appellant’s handwriting bore resemblance to the handwriting on the forged check, and appellant admitted to a police officer after his arrest that he took the check form in question from Lena Stanfield’s checkbook and directed another man to fill it out. The appellant, testifying in his own behalf, denied the confession. The appellant stated he cashed the check on behalf of a man he met in a tavern; that he didn’t know the man and that he hadn’t seen the man since the transaction. The jury returned a verdict of guilty on both counts. The appellant alleges the evidence was insufficient to prove forgery or passing of a forged instrument. It is the function of the trier of fact, not the reviewing court, to weigh evidence and pass on credibility and where sufficiency of evidence is being reviewed, the appellate court’s function is limited to ascertaining whether there was basis for a reasonable inference of guilt. (State v. Calvert, 211 Kan. 174, 505 P. 2d 1110.) In State v. Murphy, 145 Kan. 242, 65 P. 2d 342 this court stated: “. . . The jury by its verdict, among other things, found he was in possession of a forged check. Such possession, without a reasonable explanation of how he acquired it, warranted an inference he himself had forged it or was a guilty accessory to the forgery. The verdict indicates appellant’s explanation of how he acquired the check did not appear reasonable to the mind or conscience of the jury. Under these circumstances the conviction must stand. . . (pp. 246, 247.) The appellant next contends the testimony of the deputy sheriff concerning the appellant’s alleged admission was incompetent and untrue. In support of this assertion the appellant cites his own testimony as the true version. It is the province of the trier of fact to pass on credibility (State v. Calvert, supra). Moreover, the testimony of the deputy sheriff was neither objected to at trial nor in the motion for a new trial. When a question is not presented to the district court, it will not be considered for the first time on appeal. (Young v. State, 206 Kan. 318, 478 P. 2d 194.) The appellant’s last point of error is that the sentence imposed constituted cruel and unusual punishment because it was disproportionate to the offense. The appellant had two prior felony convictions and was sentenced within the limits of the applicable statutes. A sentence of imprisonment which is within the limits of a valid statute ordinarily is not a cruel and unusual punishment in the constitutional sense. (In re MacLean, 147 Kan. 678, 78 P. 2d 855.) The argument advanced by the appellant in this regard has previously been before the court and rejected. (State v. Huesing, 211 Kan. 610, 506 P. 2d 1140.) The judgment of the lower court is affirmed.	[ -80, -24, -27, -99, 9, -32, 59, -70, 32, -91, 39, 115, -87, 80, 4, 127, -1, -83, 116, 113, -36, -77, 39, -55, -14, -13, -39, -43, -75, 75, -76, -44, 72, -80, -30, 85, 102, -56, -57, -48, -114, 4, 41, -62, 81, -120, 32, 34, 2, 11, -79, -98, -14, 58, 26, 66, 73, 44, 75, -65, 88, -15, -90, 5, 125, 22, -77, 39, -100, 15, -40, 46, -100, 57, 3, -8, 50, -106, -126, 84, 75, 43, 12, 102, 98, 48, 21, -21, -92, -119, -81, 119, -99, -89, -104, 88, 73, 45, -108, -99, 116, 54, 10, -4, -14, 20, 23, 108, 3, -33, -44, -77, 31, 60, -122, 75, -1, -93, -128, 97, -35, -32, 92, 87, 58, -103, -114, -108 ]
Hie opinion of the court was delivered by Harman, C.: This is an appeal in a proceeding wherein parental rights were terminated pursuant to K. S. A. 38-824 and related provisions in our juvenile code. The issues are the admissibility of hearsay evidence in such a proceeding and sufficiency of the evidence to support a finding of parental unfitness. Appellants Russell Johnson and Alice Johnson are the natural parents of Jimm Johnson, bom February 27, 1956; Allen J. Johnson, bom September 22, 1957; Kathleen Johnson, bom October 16, 1958; Thomas G. Johnson, bom December 4, 1959; Jean Johnson, bom December 17, 1968; and Lewis M. Johnson, bom September 11, 1970. The Johnsons first lived in Wichita where Mr. Johnson had some employment and the family received social welfare assistance. The proceeding originated April 4, 1969, when petition was filed in the juvenile court of Sedgwick county to declare the first five of the above-named children dependent and neglected. The state sought the exercise of parental rights over the children. After hearing the juvenile court found that the children were dependent and neglected and severed parental rights. Mr. and Mrs. Johnson appealed this order to district court where, after de novo hearing, the children were again found to be dependent and neglected. However, the district court, division 4, found that permanent severance of parental rights was not justified because the neglect was not wilful. Custody was placed in the state department of social welfare and the proceeding was remanded to the juvenile court. All of the five children were placed in foster homes; however, Jean was eventually returned to her parents. In April, 1971, Mr. Johnson departed from Wichita with the welfare check and did not return for a while. This action precipitated the filing of a petition alleging the dependency and neglect of Lewis M. Johnson, who had been born in the meantime, and further asking that parental rights in him be severed. On April 27, 1971, a temporary order was issued removing Jean and Lewis from the custody of Mrs. Johnson. Extensive hearings were held in juvenile court. Meanwhile Mrs. Johnson went to Douglas county, Nebraska, where Mr. Johnson had established himself and the two have lived there ever since. Next an amended petition was filed asking that parental rights in all the children be severed. Due notice was given and an evidentiary hearing was held. On November 15, 1972, the juvenile court found that all six of the children were dependent and neglected, that the Johnsons were unfit to have their custody and it severed parental rights as to all the children. Mr. and Mrs. Johnson again appealed the matter to district court. There, after de novo hearing, the district court, division 9, made the same order as the juvenile court. The Johnsons now bring the matter here for review. At the hearing before the trial court, in addition to live testimony, written reports of an evaluation of the Johnsons made by a psychiatrist in Nebraska and of an investigation made by a social welfare worker at Valley, Nebraska, were received in evidence over appellants’ objection. The persons making the reports were not present. The psychiatrist’s report contained his opinions and tire results of a number of psychological tests administered to the Johnsons. The juvenile court of Sedgwick county had after the initiation of the last termination proceeding requested tíre making of the evaluation and investigation in Nebraska where the Johnsons were living. Appellants’ objection, renewed here, is based on the hearsay aspect of the evidence received and the lack of opportunity for cross-examination. Appellee concedes the evidence was hearsay but contends that hearsay is admissible in juvenile court and further, the evidence in question was admissible as an exception to the hearsay rule. We will treat with the latter contention first. The exception relied on is that stated in K. S. A. 60-460 (d) (3), as follows: "... if the declarant is unavailable as a witness, a statement narrating, describing or explaining an event or condition which the judge finds was made by the declarant at a time when the matter had been recently perceived by him and while his recollection was clear, and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort. . . .” K. S. A. 60-459 in pertinent part provides: "(g) 'Unavailable as a witness’ includes situations where the witness is: . . . (4) absent beyond the jurisdiction of the court to compel attendance by its process. . . . “But a witness is not unavailable ... if unavailability is claimed under clause (4) of the preceding paragraph and the judge finds that the deposition of the declarant could have been taken by the exercise of reasonable diligence and without undue hardship, and that the probable importance of the testimony is such as to justify the expense of taking such deposition.” Aside from the fact the reports here were not made prior to the commencement of the proceeding as required in 60-460 (d) (3), they were inadmissible because there was no indication the persons making them were unavailable as witnesses within the meaning of 60-459 (g) (4). The psychiatrist and the social worker were residents of Nebraska and not subject to subpoena. However, a juvenile court has authority to issue commissions to take depositions of witnesses without the state (K. S. A. 38-809 [c]) and there was no showing or finding made respecting the failure to take the witnesses’ depositions. No attempt was ever made to qualify the reports as regular business entiles and they simply were not admissible under any exception to the hearsay rule. Appellee’s argument that hearsay testimony is admissible in juvenile court proceedings is based primarily on language found in In re Waterman, 212 Kan. 826, 512 P. 2d 466, to the effect our juvenile code is a complete, comprehensive enactment covering the field of certain classes of children and that it provides its own specific rules and procedures, including procedures for appeals. We were dealing there with a right purely statutory — the right to appeal from juvenile court to district court — in which the language used was particularly appropriate. Overlooked by appellee here are certain statutory provisions in the juvenile code which we think sufficiently supply an answer to the question posed in a matter of adjudication as serious as that of severance of parental rights. K. S. A. 38-809 (a) empowers a juvenile court to compel the attendance of witnesses and to examine them under oath; subsection (b) authorizes it to issue subpoenas, citations and attachments; and, as indicated, (c) empowers it to issue commissions to take depositions, either within or without the state. K. S. A. 38-820 provides that no order depriving a parent of parental rights shall be entered unless the parent is present in juvenile court or has been served with summons; further that the judge of the juvenile court shall assign an attorney to any parent who is unable to employ counsel, such counsel to be awarded a reasonable fee to be paid from the county general fund. K. S. A. 38-830 makes parents whose actions have caused or contributed to the dependency and neglect of their children guilty of a misdemeanor and subject either to a fine not to exceed $1,000 or imprisonment in the county jail for a period not to exceed one year, or both. And finally, K. S. A. 38-813 states: “All witnesses shall be sworn on oath or affirmation, and the rules of the code of civil procedure relating to witnesses, including the right of cross-examination, shall apply to proceedings in the juvenile court. . . .” Our civil procedural code contains no provision expressly prescribing the right of cross-examination other than that implicit in K. S. A. 60-460, which declares hearsay inadmissible where not specifically excepted. This statute in effect preserves the right of cross-examination in civil cases. A district court may adjudicate custody of children in a private civil custody dispute; it may also, pursuant to K. S. A. 1973 Supp. 60-1610 (c), terminate parental rights in a divorce proceeding. In such situations there would be no question but that hearsay evidence not within one of the prescribed exceptions would be in ad missible under 60-460. It would seem anomalous to deny the use of hearsay evidence in such actions and allow it in a proceeding of the same character instituted in juvenile court. We think the legislature did not intend such a result. Considering all the foregoing — the drastic nature of the measure sought to be applied, with possible attendant criminal aspects, the statutory provisos for securing live testimony under oath, the right to counsel and the explicit reference to our code of civil procedure —we hold that hearsay evidence is not admissible in the adjudicatory stage of a proceeding to terminate parental rights. We would not be heard to say that all proceedings in juvenile court are to be held to the same strict rules as those prescribed for hearings in district court; however, the requirements of the law are to be followed for a proper hearing to be had. Our holding of error in the admission of hearsay evidence does not automatically compel reversal of the judgment appealed from. Appellee makes the further contention that the remainder of the evidence, without tire hearsay, was of such nature as to justify the trial court’s finding of parental unfitness. Parental unfitness is not defined by our statutes. In In re Vallimont, 182 Kan. 334, 321 P. 2d 190, this court stated: “Parents who treat the child with cruelty or inhumanity, or keep the child in vicious or disreputable surroundings, are said to be unfit. Parents who abandon the child, or neglect or refuse, when able so to do, to provide proper or necessary support and education required by law, or other care necessary for the child’s well being are said to be unfit. Violence of temper or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects.” (p. 340.) In Finney v. Finney, 201 Kan. 263, 440 P. 2d 608, we had this to say: “The word ‘unfit’ means, in general, unsuitable, incompetent or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Unsuitability for any reason, apart from moral defects, may render a parent unfit for custody.” (Syl. ¶ 2.) Appellee presented the testimony of five witnesses at the hearing before the trial court. One witness, a child neglect investigator, had been familiar with the Johnson family since November, 1969; she interviewed Mrs. Johnson when Mr. Johnson left her in April, 1971. Mrs. Johnson, who had the two younger children with her at the time, appeared to be quite lost; the two children were not receiving emotional support from Mrs. Johnson; about a month and a half later Mr. Johnson came into the investigator’s office and was angry when she was unable to tell him where his wife was; he said he had seen Mrs. Johnson malee love to other women. The manager of the duplex in which the Johnsons lived in Wichita in 1971 testified respecting her observations: The house was always cluttered; the Johnsons put trash and raw garbage in the basement; they also stored garbage in the stove; cockroaches constituted “quite an ordeal”; the baby always remained in the baby bed and Jean was always tied to the potty chair; they were never seen playing; neither parent was ever seen talking to or playing with the children; once the baby had a black eye which Mrs. Johnson said resulted from falling out of the bed; the children were never fully clothed; complaints were made that the children were having colds because of the drafty conditions in the duplex; there were always dirty dishes in the kitchen along with cockroaches and silverfish; Mrs. Johnson said Mr. Johnson left her and took the rent check. A witness who took Jean after a month’s stay in the hospital testified that at first Jean was very nervous, hyperactive and cried a lot from fright; she seemed to be terrified of men; she could speak only one or two words; she didn’t drink milk because she was no longer on a bottle and was unable to hold a glass; within about two weeks she could feed herself perfectly; she has since become a happy outgoing girl who loves to watch Sesame Street and recite the alphabet. Another witness who had been caring for Kathleen Johnson since December 5, 1970, testified respecting her actions: Kathy, who was twelve years old when she came into the foster home, did not understand whether she had two shoes alike or not — she might put on a tennis shoe and a dress shoe at the same time or two other unmatched shoes; she could not set a table but learned after six months; she was very withdrawn; she was in the foster home three months before she had enough emotional response to laugh; evaluation later at the hospital revealed Kathy had some brain damage; she is now very particular about the care of her hair and how she dresses; she can count to 200, knows colors and her ABC’s; she has certain chores around the house, helps take care of her own room, and can work puzzles; soon it is expected she will be taught to read. Another witness testified about the actions of the three older boys in the home of himself and wife since November, 1970: These boys were aged fourteen, thirteen and eleven when placed in the foster home; when they first came they seemed starved for love and affection; they also hungered for food — at table it was first come, first served — if you didn’t get there you didn’t get any food at all; the youngest boy had a tendency to steal but this has been fairly well corrected; the oldest boy has been a problem because of lying and stealing and has been receiving psychiatric care; the middle boy could not tell time and do other things boys of his age can do; he is now in school and has received medication for his epileptic seizures; the boys seemed unfamiliar with routine personal hygiene. The only witness for appellants was Mr. Johnson. He testified his bad home conditions in Wichita were the result of improper septic tanks. He denied that trash accumulated. He left home to locate a job and returned to find his children taken away. Two of them had epilepsy and a third had a medical problem. The John-sons have had another child since moving to Nebraska. This child, six months old, is on a diet. He testified concerning two jobs he then held in Nebraska and the three-bedroom mobile home he was purchasing. He was of opinion he and his wife could adequately care for all of their children. His testimony recognized no health or emotional problems in the family other than just mentioned. We think the evidence before the court, excluding the hearsay, virtually compelled a finding of parental unfitness, and hence the error in receiving the hearsay was harmless and the judgment must be affirmed. The trial court obviously had misgivings about receiving the hearsay because of the lack of opportunity for cross-examination. It commented specifically on the matter, the general import being that little weight or consideration would be given to the conclusions and opinions stated in the reports. The testimony of the five witnesses need not be labored — suffice it to say it revealed deplorable living conditions and atmosphere for the children, with sad results. The Johnsons, for whatever reason, and it did not appear to be financial, simply were unable properly to care for and rear their children. Lennon v. State, 193 Kan. 685, 396 P. 2d 290, involved parental fitness in a termination of parental rights proceeding. This court stated: “We readily agree that parental rights are not to be considered lightly, and this court has always been diligent in their protection. [Citations] However, when the welfare of a child so demands, the rights of its parents must yield to the paramount right of their offspring to receive proper parental care, guidance and control. Where such be the case, the state, in the rightful exercise of its power as parens patriae, has the duty to intervene on behalf of the child in furtherance of its legitimate interests.” (p. 691.) The judgment is affirmed. APPROVED BY THE COURT.	[ -47, 72, -19, 60, 26, 98, 107, 30, 19, -77, 103, 83, -21, -54, 69, 125, 86, 45, -48, 120, -61, -77, 87, -31, -106, -5, -15, -36, -77, 95, -28, -44, 76, 112, -118, -11, 66, -64, -51, 20, -122, 3, -88, -3, 89, -126, 52, 107, 114, 14, 53, 46, -9, 40, 60, -45, -88, 46, -37, -83, 24, -8, -117, -107, -99, 18, -77, 2, -102, 69, 104, 47, -112, 57, -120, -24, 114, -90, -122, -68, 31, 9, -88, 119, 70, 2, -68, -25, -4, -120, 78, -98, -99, -26, -103, 88, 99, -123, -74, -80, 85, 20, 15, -4, -29, 12, 63, -28, -56, -50, -34, -79, 77, -72, 8, 25, -29, -91, 48, 113, -41, -90, 84, 71, 50, -103, -114, -70 ]
The opinion o£ the court was delivered by Fatzer, C. J.: This appeal is from an order of the district court denying the appellant’s motion to set aside a default judgment. The appellees, Reliance Insurance Companies and Maryland Casualty Company, were plaintiffs in an action against appellant Thompson-Hayward Chemical Company and appellee Huebsch Originators of Milwaukee, Wisconsin. For purposes of clarity Reliance Insurance Companies and Maryland Casualty Company are hereafter referred to as appellees; Thompson-Hayward Chemical Company as Thompson-Hayward or appellant, and Huebsch Originators of Milwaukee, Wisconsin as Huebsch. This action stems from a fire at Royal Cleaners, Inc., Wichita, Kansas. On March 24, 1969, some clothing in one of six Huebsch’s clothes dryers owned and operated by Royal caught fire and spread to adjacent areas causing damage to Royal’s building, equipment and customers’ clothing. The appellant is the local sales representative of Huebsch. The appellees, as insurers of Royal’s building and its contents, made payment for damages caused by the fire. On January 14, 1971, the appellees filed an action asserting subrogation claims totaling $35,681.85 against Thompson-Hayward and Huebsch. In their petition, appellees alleged Thompson-Hayward and Huebsch were liable by reason of negligence, breach of express and implied warranties, and breach of contract. On January 15, 1971, Thompson-Hayward was served with copies of the petition and summons at its business office in Wichita. The answer date for Thompson-Hayward was February 4, 1971. Service of process on Huebsch was directed to the Secretary of State who served Huebsch on January 19, 1971, pusuant to K. S. A. 17-509 (repealed L. 1972, Ch. 52, § 153, now K. S. A. 1973 Supp. 17-7307). Answer date for Huebsch was March 1,1971. Thompson-Hayward did not file an answer within the prescribed time. On the morning of February 8,, 1971, Mr. Russell E. Swisher, tire claims manager in Wichita for Thompson-Hayward’s insurance carrier, Hartford Insurance Group, was informed by telephone from Hartford’s New York office of the pending lawsuit and that the answer date was February 4, 1971. Mr. Swisher immediately contacted appellees’ attorney and inquired if he would consent to granting Thompson-Hayward an extension of time within which to file an answer. Counsel declined the request. Thereafter, Mr. Swisher asked Mr. James R. Barr, a member of the Wichita bar, to protect the interests of Thompson-Hayward. On the same date, February 8, appellees’ attorney prepared a motion for default judgment and mailed a copy to Thompson-Hayward’s Wichita office. At the same time, Thompson-Hayward was; given notice that the motion would be heard on February 19, 1971. Appellees’ motion was filed in the district court on February 9, 1971. On February 16, 1971, Mr. Barr filed a motion on behalf of Thompson-Hayward requesting leave to file an answer out of time. Deleting the introductory phrase, that motion alleged: “. . . [T]hat defendant is a large corporation with various levels of responsibility, and that the original time for filing answer was consumed in transmitting summons through defendant’s normal chain of command, and for that reason the matter was not placed in local counsels’ hands in time to file said answer, all of which this defendant maintains is excusable neglect.” The following day, February 17, Thompson-Hayward’s retained counsel filed an answer which denied appellees’ allegations, and alleged that any action based upon breach of warranty or contract was barred by the statute of limitations, K. S. A. 60-512. At the hearing on February 19, the district court granted default judgment against Thompson-Hayward, finding the appellant’s motion failed to show a sufficient reason or excuse for its failure to timely file an answer. No record was made of the hearing and no journal entry was prepared. In conjunction with the hearing, Thompson-Hayward filed a motion for production of all non-privileged documents in appellees’ possession containing discoverable information. The record indicates no action was taken on this motion until it was overruled on May 28,1971. On March 1,1971, Thompson-Hayward filed a motion to set aside the default judgment pursuant to K. S. A. 1970 Supp. 60-255 (b) and K. S. A. 60-260 (b). Thompson-Hayward alleged its failure to answer timely was occasioned by reason of mistake,, inadvertence, surprise or excusable neglect; that at the hearing granting appellees a default judgment the court had considered only the petition and motion before it and no evidence was presented; that at the time the default judgment was entered against the appellant, the time to answer had not yet expired for Huebsch, a co-defendant who was alleged to be jointly and severally liable, and that appellees had not communicated to Thompson-Hayward any claim of liability prior to service of process. At the time Thompson-Hayward filed its motion to set aside the default judgment, it also filed a motion to alter or amend judgment pursuant to K. S, A. 1970 Supp. 60-259. In support of its motion to alter or amend, Thompson-Hayward alleged no evidence was offered or presented to the court at the hearing on February 19; that no findings of fact were made by the court; that appellees lack prima facie evidence as to liability on the part of Thompson-Hayward, and that appellees’ claim of breach of warranty was barred by the statute of limitations which was known or should have been known by them. Appellant requested oral argument and leave to present evidence in support of both motions. Additionally, and on the same date, March 1, Thompson-Hayward filed a cross-claim for indemnification against Huebsch. The grounds alleged were negligence, breach of implied warranty, and breach of contract. Thompson-Hayward then commenced discovery. Appellees permitted Thompson-Hayward to examine the dryer unit which had caused the fire, and furnished Xerox copies of photographs; a copy of the Wichita Fire Department’s investigation report, and copies of subrogation documents. The appellant was also advised that Haag Engineering Company of Dallas, Texas, had investigated the fire loss for appellees and submitted a written report. The appellant was informed it was the opinion of Haag Engineering Company that when the dryer was installed at Royal Cleaners, Inc., someone had not taken off a wire that had been placed through a pin for shipping purposes and that wire prohibited a safety plate from falling and confining the fire to the dryer. On March 4, 1971, Huebsch filed an answer to plaintiffs’ petition and a cross-claim against Thompson-Hayward. Mention should be made that on February 24, Huebsch obtained a ten-day extension— from March 1, to March 11 — in which to file its answer, hence its answer was timely filed. The answer denied the allegation of appellees’ petition, and further alleged: “. . . [T]hat the applicable statutes of limitation have expired, and that therefore plaintiffs’ Petition fails to state a claim upon which relief can be granted. “. . . [T]hat plaintiff’s insured Jack B. Stephens was himself guilty of the acts of negligence in the way of omission and commission, and that by reason thereof plaintiffs are not entitled to recover from this defendant. “. . . [TJhat if the plaintiffs sustained any damage it was by reason of the negligence of third persons, including this defendant’s codefendant over whom they had no control, and that therefore plaintiffs are not entitled to recover from this defendant. “. . . [T]his defendant by answering herein does not waive, but specifically asserts the defenses of lack of jurisdiction of the person of this defendant, insufficiency of process, insufficiency of the service of process, and failure of the plaintiffs to state a claim upon which relief can be granted.” Huebsch’s cross-claim against Thompson-Hayward asserted each allegation contained in its answer against the appellees, and further asserted that Thompson-Hayward was negligent in connection with the sale and installation of the dryer and that by reason thereof Huebsch was entitled to indemnity from Thompson-Hayward for any sums it may be required to pay the appellees. On March 5, 1971, Thompson-Hayward filed a demand for jury trial pursuant to K. S. A. 60-238. On April 8, the administrative judge entered an ex parte order placing the case on the court’s non-jury docket. Thompson-Hayward immediately sought vacation of the order, and on April 30, 1971, the court ordered the case placed on the jury trial docket. On March 8, Thompson-Hayward amended its answer filed February 17, to include an allegation of contributory negligence on the part of the appellees’ insured, Royal,, and also filed its answer to Huebsch’s cross-claim. Thompson-Hayward’s discovery efforts resulted in a motion by the appellees to stay all discovery proceedings and for a determination by the court of the scope of discovery to be permitted. At a hearing on May 28, Thompson-Hayward argued it was entitled and required to show factual information disclosing a meritorious defense in support of its motions to set aside the default judgment and to alter or vacate the judgment. Appellees argued a showing of a meritorious defense was not required to support a setting aside of a default judgment under K. S. A. 60-255 (b) and K. S. A. 60-260 (b). All parties conceded that discovery should be permitted with respect to the issue of damages. Regarding the scope of discovery, the court stated: “. . . you have discovered as much through depositions and various other methods of discovery that as far as I’m concerned you are entitled to use, . . . I think you have a right to deny [the liability allegations] ... of the petition. . . . Then it becomes a question of how much more, how far are you to go with this determining that you have a meritorious defense and what I’m saying is I think that the Court has got to call a halt to it sometime and has got to put a limit on how far you can go. . . .” An evidentiary hearing was held by the district court on July 8. Prior to the hearing, Thompson-Hayward filed an amended motion to set aside the default judgment. Evidence was presented by the appellant with respect to its sales procedures and pre-litigation communication between Thompson-Hayward and appellees. Concerning its failure to file a timely answer, the evidence disclosed that Thompson-Hayward is a subsidiary of North American Phillips Corporation whose home office is in New York. The summons and petition were transmitted by Thompson-Hayward’s Wichita office through its Kansas City office to New York. They were received in North Americans office on Thursday, January 21, 1971, and placed on the desk of North Americans corporate insurance officer. No action was taken on the summons and petition for seven business days, that is, until Monday, February 1, 1971,. due to the absence of the corporate insurance officer — his absence being caused by North Americans recent change of insurance carrier. The remaining delay of three business days was occasioned by the transmittal of the summons and petition to Hartford by an administrative assistant. At a subsequent hearing on July 29, the district court held appelant had not shown reason sufficient to set aside the default judgment. Thereafter, on August 2, Thompson-Hayward filed a motion for default judgment on its cross-claim against Huebsch which had been filed March 1 — some five months prior. On the same date Huebsch filed an answer to Thompson-Hayward’s cross-claim. On September 3, the district court overruled Thompson-Hayward’s motion for default judgment on. its cross-claim against Huebsch. The district court reasoned the primary defenses of Huebsch had been presented in its answer to appellees’ petition and Thompson-Hayward was not prejudiced by Huebsch’s failure to answer out of time. At the same hearing and over objection of counsel for both Thompson-Hayward and Huebsch, the district court ruled the action would be set down for a hearing to determine damages. The court further ordered: “. . . [Damages will] be determined by the court without a jury at a hearing to be set by the court and at which the Plaintiffs shall present evidence as to the amount of their claim and the Defendants, or either of them, shall not present evidence, examine the witnesses called by Plaintiffs nor otherwise participate or be heard.” On various dates thereafter, the district court entered orders overruling all of Thompson-Hayward’s motions. At a pretrial hearing on September 17, the district court sustained the appellees’ motion to dismiss its claim against Huebsch. The court also sustained Huebsch’s motion to dismiss Thompson-Hayward’s cross-claim against it, and their cross-claim against Thompson-Hayward. On October 26, the district court again denied Thompson-Hayward a trial by jury on the issues of damages. After hearing the testimony of appellees’ claims adjustors and admitting into evidence the report of Haag Engineering, the district court entered judgment against Thompson-Hayward for $35,681.85. Thereafter, Thompson-Hayward perfected this appeal, raising eleven specifications of error. We shall consider only those necessary to the resolution of this appeal. Defaults are not favored in law. (Sharp v. Sharp, 196 Kan. 38, 409 P. 2d 1019; Wilson v. Miller, 198 Kan. 321, 424 P. 2d 271.) Judgment by default becomes necessary when the inaction of a party frustrates the orderly administration of our judicial process. The section of the Kansas Code of Civil Procedures permitting entry of a default judgment is a deterrent to the strategy of delay. As was previously mentioned, appellant filed a motion to set aside the default judgment pursuant to K. S. A. 1970 Supp. 60-255 (b) and K. S. A. 60-260 (b). K. S. A. 1973 Supp. 60-255 (h) provides: “For good cause shown the court may set aside a judgment entered by default in accordance with K. S. A. 60-260 (b).” K. S. A. 60-260 (b) to which reference is made, reads in part: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistakes, inadvertance, surprise, or excusable neglect. . . The general rule in Kansas, as acknowledged by appellant, is that granting relief under those sections rests in the sound discretion of the district court. (Becker v. Roothe, 184 Kan. 830, 339 P. 2d 292; State, ex rel., v. Showalter, 189 Kan. 562, 370 P. 2d 408; Cadwallader v. Lehman, 202 Kan. 738, 451 P. 2d 163.) The discretionary aspect clearly establishes the fact that the requesting party is not entitled to relief as a matter of right. (Lackey v. Medora Township, 194 Kan. 794, 401 P. 2d 911.) The appellant discusses our decisions wherein we declined to substitute our judgment for that of the district court and sustained entry of a default judgment. Appellant suggests the cases are distinguishable by the actions of the party requesting relief and the time frame involved. We need not answer the contention for the the reason we are of the opinion the district court abused its discretion in entering default judgment against Thompson-Hayward. In Boyce v. Boyce, 206 Kan. 53, 476 P. 2d 625, the term “excusable neglect” as. used in the enlargement statute relating to garnishment proceedings was considered. We held that excusable neglect as used in K. S. A. 60-206 (b) was not susceptible to clear definition, and stated that what constituted excusable neglect under the statute must be determined on a case by case basis under facts presented. Those principles are applicable to the case at bar. Consideration should be given to whether the party’s conduct reflects neglectful indifference or negligence amounting to reckless indifference. (Wilson v. Miller, supra.) In Cadwallader v. Lehman, supra, this court, in considering Wilson, stated: “. . . [0]ur entire procedure for trial of civil litigation would be destroyed if a judicial summons or other legal process were allowed to be treated with indifferent neglect. The same might well be said if .legal process could, with impunity, be willfully or intentionally ignored. . . .” (l. c. 750.) The exercise of judicial discretion requires a judge have due regard for what is just under prevailing circumstances and not exercise that discretion in an arbitrary fashion. With respect to the exercise of discretion, in Tilley v. International Harvester Co., 208 Kan. 75, 490 P. 2d 392, we said: “In the official reports of this court many decisions can be found relating to judicial discretion and the bounds of its exercise. In Willoughby v. Willoughby, 178 Kan. 62, 283 P. 2d 428, it was said of judicial discretion that it implies the liberty to act as a judge should act, upon fair judicial consideration, and not arbitrarily. The Court of Appeals for the Tenth Judicial Circuit, in Atchison, Topeka and Santa Fe Railway Co. v. Jackson, 235 F. 2d 390, described judicial discretion in these words: “ ‘. . . The term discretion when used as a guide to judicial action means sound discretion exercised with due regard for that which is right and equitable under the circumstances. It means discretion by reason and conscience to a just result, and it frequently involves painstaking consideration of many factors, giving to each the weight to which it is appropriately entitled. . . .’ (p. 393.)” (l.c.78, 79.) We have previously acknowledged that the provisions of K. S. A. 1973 Supp. 60-255 (h) and K. S. A. 60-260 (b) were taken from the Federal Rules of Civil Procedure, and have considered applicable federal cases. See Neagle v. Brooks, 203 Kan. 323, 454 P. 2d 544; Cadwallader v. Lehman, supra; Wilson v. Miller, supra; Lackey v. Medora Township, supra. In 10 Wright and Miller, Federal Practice and Procedure, Section 2685, it is stated: “In determining whether to enter a default judgment, the court is free to consider a number of factors that may appear from the record before it. Among these are the amount of money potentially involved; whether material issues of fact or issues of substantial public importance are at issue; whether the default is largely technical; whether plaintiff has been substantially prejudiced by the delay involved; and whether the grounds for default are clearly established or are in doubt. . . .” (pp. 265, 266.) We do not wish to be understood as implying that a single aspect controls or nullifies the necessity of default. Clearly such a conclu sion was rejected by this oourt in Wilson v. Miller, supra, when we stated: “The appellant contends that the default was the result of his inadvertence and excusable neglect, and that the trial court abused its discretion in denying the motion to vacate. He suggests that the interest of justice is best served by a trial on the merits, and that matters involving large sums of money should not be determined by default judgments. “We find merit in appellant's suggestion but we must suggest in reply that our entire judicial process for trial of civil controversies would be destroyed if a court’s summons or other process were permitted to be treated with neglectful indifference.” (l. c. 322.) Thompson-Hayward and Huebsch as co-defendants were charged with joint liability. The appellees, by dismissing the action against Huebsch prevented an adjudication of the merits. We do not believe the necessity of default mandates such an inequity. In 10 Wright and Miller, op. cit., supra, Section 2690, p. 289, the general rule is stated: ". . . [W]hen one of several defendants who is alleged to be jointly liable defaults, judgment should not be entered against him until the matter has been adjudicated with regard to all defendants, or all defendants have defaulted. The court in [Frow v. De La Vega, 15 Wall. (82 U. S.) 552, 21 L. Ed. 60] stated that: “ ‘[I]f the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter as well as the others. If it be decided in the complainant’s favor, he will then be entitled to a final decree against all. But a final decree on the merits against the defaulting defendant alone, pending the continuance of the cause, would be incongruous and illegal.’ ” And so here, we are of the opinion the district court abused its discretion under the total circumstances disclosed by the record. The appellant initiated action to correct the default within two business days after its prescribed answer date. At the time the default judgment was granted against the appellant on February 19,1971, the time to answer had not yet expired for its co-defendant Huebsch whom appellees alleged was jointly and severally liable. Under the foregoing rule, the entry of default judgment against appellant was incongruous and illegal. Moreover, there is nothing in the record to indicate Thompson-Hayward’s failure to timely file an answer frustrated the judicial process or was prejudicial to the appellees. Indeed, the appellees’ position had not changed and they could not have been prejudiced by Thompson-Hayward’s nominal tardiness in taking action in the district court. In addition, the record shows the depositions of the chief investigators of both plain tiffs, which were before the court failed to identify who installed the dryer and neglected to remove the shipping wire. The appellant’s answer raised material issues of fact in that respect, a resolution which was vital to a just determination of the action involving a considerable sum of money. What has been said disposes of this appeal. The appellant has urged other errors relating to matters embodied in the default judgment. In view of the disposition made of this case, those points need not be discussed and decided. The judgment of the district court against Thompson-Hayward is reversed with directions to sustain the appellant’s motion to set aside the default judgment, and the case is remanded for trial on the merits as to all issues. It is so ordered.	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The opinion of the court was delivered by Harman, C.: This is an action against a corporate drive-in theater and one of its employees for damages for personal injuries sustained by a theater patron as a result of the employee’s discharge of a shotgun. Summary judgment was rendered for the theater company and die patron has appealed. Plaintiff Jerry Williams in his petition alleged that on April 7, 1970, he was a patron on die theater premises in Topeka operated by defendant Community Drive-In Theater, Inc.; that defendant Donna Kinder McKenna was at that time a theater employee and was acting within the scope of her employment; at the time in question Donna negligently and carelessly discharged a shotgun into his back, inflicting bodily injuries and consequent damages for which he seeks recovery. Jury trial was demanded. Defendant Community filed its separate answer denying, among other things, plaintiff’s allegation that Donna was its employee at the time in question and that she was acting within the scope of her employment. After the taking of certain dispositions Community filed its motion for summary judgment on the ground the pleadings and depositions showed there was no genuine issue as to any material fact and it was entitled to judgment as a matter of law. At the time the motion was heard and judgment rendered the trial oourt had before it the depositions of plaintiff, Donna and Community’s manager as well as the latter’s affidavit. We briefly summarize the matter contained in those documents. Plaintiff testified that on the night in question he and his girl friend and Tim Yates and his wife attended the movie at Community’s drive-in theater. As they were driving their car toward the exit they were stopped by another vehicle which blocked their path; the man in the other car asked plaintiff what he was doing driving around; plaintiff replied he wasn’t driving around, he was just trying to leave the theater; the man said “Okay, go ahead”; they were angry about being stopped and after taking the girls home he and Yates decided to go back and file a complaint with the manager; they wanted an apology or something; they drove back to the drive-in and went directly to the concession stand; the ticket office was closed; the movie was still being shown and people were at the theater; they knocked at the concession door but got no response; about that time he saw a girl open a car door and take out a gun; he walked around to the south side of the concession stand and the girl came up behind him and Yates and pointed the gun at plaintiff; he turned and asked her what she was doing; hearing nothing he turned and started to walk away; he took two or three steps and the girl shot him; before the gun went off Yates said he wanted to see the manager; the girl said “just keep walking.” Donna McKenna testified that at tire time of the incident she was sixteen years of age; she was employed at the Community drive-in theater on April 7, 1970, and had been working there for about three weeks; she worked in the concession stand; sometimes she helped close the theater; closing it involved picking up speakers that might have been thrown down and closing and locking all doors and the gate; her husband worked at the theater ticket office and one time prior to April 7, 1970, she had helped him close the place; the night she helped him close they sat in the car to make sure everyone left; her husband would check cars that came in after the ticket office closed, maintain discipline and make sure there was no foul play; on April 7, 1970, she reported to the drive-in manager, Mr. Barnhardt, about 6:00 p. m., inquiring if she was scheduled to work; he replied that she was not but she might be needed later that night; she left and returned that night between 9:00 and 9:30 p. m.; she parked her automobile next to the southeast corner of the concession stand; they were quite busy there and the manager asked if she would run the cash register; about 10:30 p. m. while she was still working at the cash register, the assistant manager, Mr. Robertson, asked her if she would help him close the theater because the other girl was due home; she agreed to help him; she helped close the concession stand shortly after 11:00 p. m. and then went with Robertson in his car; at this time she, Robertson and the projectionist were the only employees on the premises; Robertson parked the car close to the entrance so they could view the movie and also see if anyone tried to get in without paying; while sitting there she saw plaintiff s car come into the drive-in and go to the con cession stand; Robertson said he believed this was the same car he had twice before asked to leave; Robertson drove his car down to die concession stand where the men were walking around and he then went to talk to a third man who was in plaintiffs car; she accompanied Robertson and then went to her car to get her husband’s .410 gauge shotgun to take to Robertson; since there were three men against Robertson she thought the shotgun would give him a little more authority and the three would think twice before causing any trouble; she was afraid for his and her safety because the man in the automobile made her believe they were in for trouble; she was walking behind the plaintiff and his friend when they stopped and one of them said, “She has a gun”; she dren put the gun up against plaintiff s shoulder and told him, “Let’s go to the other side of the building”; plaintiff turned as if to walk in front of her, the gun dropped, she grasped the gun tighter which probably pulled the trigger and plaintiff was shot; she grasped the gun tighter only to keep it from falling when plaintiff unexpectedly turned; she had no intention of shooting him or anyone else; the gun discharged accidentally. Donna further testified she checked the shotgun to see if it was loaded but had not checked the safety; the decision to get the gun was her own; her husband had been at the theater earlier that day using the gun to shoot rats and “things”; he would engage in this practice frequently with Robertson and the manager; Robertson knew they owned a shotgun; she had fired the shotgun that afternoon but had not previously done so; she did not receive any pay for the evening. The manager, Mr. Bamhardt, testified as to the duties of various drive-in employees; the assistant manager, Robertson, was in charge that night after he had left; Robertson was expected to investigate any disturbance, maintain discipline among patrons, watch and protect property and take appropriate action; on the night in question he noticed an automobile drive to the rear about 10:45 p. m.; he and Robertson started to investigate; Robertson asked if he could help them: when they said they were trying to find their way out Robertson showed them and they left. Barnhardt testified he left before the shotgun incident and had no contact with plaintiff other than observing the automobile; he talked with Robertson after the incident; Robertson told him the man in the back of the car said the other two were looking for the “guy” who had stopped them earlier; Robertson said he was going to call the police but heard the shot before he could do so; there would be nothing unusual about one employee protecting another and any employee would be expected to take reasonable measures to protect property; employees were supposed to report disturbances; they had instructions to make no resistance in event of a robbery. The managers affidavit revealed the following: Sometime prior to the shotgun incident he had been hiring deputy sheriffs at $3.00 per hour to act as security guards; the parent corporation of which Community was a subsidiary decided tins was too much expense and theater personnel would have to do the security and police work themselves and maintain order within the theater area without the deputy sheriffs; he had a deputy sheriff’s commission; Robertson obtained a deputy sheriff’s commission and a deputy sheriff’s shirt to use on occasions when deemed necessary; Robertson also obtained a permit to carry a gun and carried one at times while on duty; security was needed on week-ends and when they had large crowds; fights occurred, people threw beer cans and they caught deserters; it was a pretty rough place and on those occasions he and Robertson would try to break up disturbances with the use of force; on several occasions they called in police; Leon Barker, a doorman, carried a gun and once “put a gun to a guy’s head for throwing gravel”; another doorman helped in some difficulties; the incidents mentioned occurred prior to the night in question; he was sure Robertson knew Donna had the shotgun in her car as everyone knew that her husband had the shotgun. The manager had never told Donna to leave the gun at home. The trial court, in a memorandum opinion, reviewed certain items of evidence and applicable law and concluded Donna was not acting within the scope of her employment when she discharged the shotgun into plaintiff’s back. It stated there was no indication the assistant manager asked for her assistance or for her to get help or that he appeared to be in danger other than in Donna’s perception of events as they occurred and under the evidence there was no imaginable way the conduct of the sixteen year old girl, an employee of just three weeks in the concession stand, could have been foreseen from the nature of her duties and employment. The court rendered judgment summarily dismissing the action as to Community. Rules governing propriety of summary judgments should first be noted. A motion for summary judgment under the provisions of K. S. A. 60-256 (c) is to be sustained only where the record conclusively shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In considering such a motion the movant’s adversary is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Where the facts presented in the motion are subject to conflicting interpretations or reasonable persons might differ as to their significance summary judgment is improper. It is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law. Summary judgment should never be granted merely because the court may believe movant will prevail if the action is tried on the merits. Plaintiff-appellant contends the evidence before the court disclosed Donna was acting in the course of her employment or at the least it sufficiently presented a factual issue as to her status to be determined by a jury. He emphasizes his action is based on negligence, arguing that Donna did not intend to shoot anyone but accidently discharged the shotgun while she was directing appellant and his companion to Mr. Robertson. Appellant further asserts appellee Community would be hable for the shooting even if it were intentional. Essentially appellee would treat Donna’s act of shooting as a wilful assault beyond the scope of her employment as a concession stand operator rather than a negligent act incident to her employment in helping the assistant manager in his security work. The argument is that she was acting purely as a volunteer at the time complained of. Our basic law on scope of authority in connection with a employer’s vicarious liability is expressed in summarized fashion in PÍK 7.04 thus: "An employee is acting within the scope of his authority when he is performing services for which he has been employed, or when he is doing anything which is reasonably incidental to his employment. The test is not necessarily whether the specific conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it.” Appellant cites and relies on these summarizations found in 53 Am. Jur. 2d, Master and Servant: “§ 427. Meaning of ‘scope of employment.’ “Acts impliedly authorized, or such as are -within the ‘scope of the employment,’ that is, wrongs for which the employer may be held accountable, are said not to be susceptible of precise or even very helpful definition by any phrase or short form of expression. In practically every case the authority from the master is to be gathered from and determined by the surrounding facts and circumstances — the character of the employment and the nature of the wrongful act — and is ordinarily a question to be determined by the jury, [p. 443] “. . . If the employee, being engaged about the business of the employer, adopts methods which he deems necessary, expedient, or convenient, and the methods adopted prove hurtful to others, the employer may be held liable. The purpose of the employee’s act, rather than the method of performance thereof, is said to be the important consideration. . . . [pp. 444-4453 “§ 428. — Equivalent expressions; person benefited by act. “Various words are, no doubt, the equivalents of ‘scope of employment.’ The expression, according to statements which are to be found in the reports, signifies line of duty, ‘the field of action within which one is a servant’ in the employer’s service, course of the service, pursuit or transaction of the employer’s business, doing what he has been directed to do, furtherance of the employer’s interests, and protection of the employer’s property.” (p. 446.) Appellee cites and relies on Kastrup v. Yellow Cab and Baggage Co., 129 Kan. 398, 282 Pac. 742. There the superintendent of a taxicab company had authority to hire and fire cab drivers. This official beat up a discharged driver who had stopped payment on a check he had depoisted with the superintendent as security against loss from careless driving. In a damage action against the company this court held the superintendent did not have implied authority to administer the beating so as to make the company answerable. Appellee also relies on Hamilton v. Neff, 189 Kan. 637, 371 P. 2d 157, in which a manager of a salvage yard attacked a business invitee with a metal bar as the latter was leaving (he yard after an altercation in the office over the price of a salvage item. The yard owner was absolved of liability on the ground the manager’s authority did not include authority to commit the assault and battery complained of. In Kiser v. Skelly Oil Co., 136 Kan. 812, 18 P. 2d 181, recovery was allowed for personal injuries caused by an employee slamming a door so as to break its glass panel and cut plaintiff’s hand. This language is found in the opinion: “In Mansfield v. Detective Agency, 102 Kan. 687, 171 Pac. 625, where defendant was subjected to an action for damages for injuries sustained by the unauthorized aggression of his employee, this well-settLed rule of law was thus stated: “ ‘A master or principal is responsible for the tortious acts of his servant or agent where such acts are incidental to and done in furtherance of the business of the master or principal, even if such acts are done willfully or in excess of the authority conferred.’ (Syl. ¶ 1.)” (p. 816.) The rule to be deduced from the authority cited appears to be that if an assault by an employee is motivated entirely by personal reasons such as malice or spite or by a desire to accomplish some unlawful purpose and does not have for its purpose the furtherance of the employer’s business, it will be considered personal to the employee and not such as will make the employer answerable. If the assault is committed by the employee while furthering the employers interest in some way the employer is liable under the doctrine of respondent superior — Let the master answer. Thus we see the relation of the act to the employer’s business becomes an important criterion in determining the employers liability. The, rules in question appear to be well-stated in 53 Am. Jur. 2d, Master and Servant, § 438, as follows: “According to the trend of modem authority, the liability of an employer for the acts of his employee depends not upon whether the injurious act of the employee was wilful and intentional or was unintentional, but upon whether the employee, when he did the wrong, was acting in the prosecution of the employer’s business and within the scope of his authority, or had stepped aside from that business and done an individual wrong. The now generally recognized rule is that an employer is liable for the reckless, wilful, intentional, wanton, or malicious acts of his employee as well as for his heedless and careless acts if they are committed while the servant is acting in the execution of his authority and within the course of his employment, or with a view to the furtherance of his employer’s business, and not for a purpose personal to the employee. . . .” (p. 456.) PIK 7.04 appears to embody both the foregoing concepts. In determining whether an assault by an employee is of a personal nature, and therefore unforeseeable, the question whether the employment is of such a nature that the use of force may be contemplated to protect the interests of the employer may become a pertinent factor. In Beggerly v. Walker, 194 Kan. 61, 397 P. 2d 395, this factor was discussed in the following: “We recognize the general rule, followed in Kansas as well as in other jurisdictions, that a master is not liable for a tortious act committed by his servant, including an assault and battery upon a third person, unless the act be done by authority of the master, either express or implied, or unless the act be done by the servant in the course or within the scope of his employment. [Citations] Notwithstanding this rule, we believe that the facts set out in plaintiff’s petition bring the case within an exception thereto, which, in brief, may be stated thus: That where an employee’s duties involve the preservation of peace and order on the master’s premises, or the protection of the master’s property from loss or vandalism, an inference arises that the servant is expected to use reasonable force in the performance of his duties and, consequently, the use of force falls within the scope of the servant’s employment. The statement of the rule embodying the exception is well and more fully expressed in 6 Am. Jur. 2d, Assault and Battery, § 140, in the following words: “ 'An employer’s vicarious responsibility for an assault committed by his employee may arise on the ground that the employment is of such a nature as to contemplate the use of force, and that, where an employee’s duties involve the preservation of peace and order on the premises of the employer, or the protection of the employee’s property from theft or vandalism, an inference arises that force, to a reasonable extent, may or is expected to be used in the fulfilment of the duties of the employment, and consequently, the use of such force is within the scope of employment. Where the nature of the employment or the duty imposed on an employee is such that the employer must contemplate the use of force by the employee as a natural or legitimate sequence, the employer will be held liable for the wilful or malicious act of his employee even though he had no knowledge that the act was to be done and although the act was in disobedience of express order or instructions given by him. Generally, where the employment contemplates some use of force, niceties of distinction are not indulged in to determine whether the use of excessive force was motivated by personal reasons, the view generally taken being that the amount of force to be used is discretionary with the employee, and even though there has been an abuse of such discretion the employer is nevertheless vicariously liable under the doctrine of respondeat superior. This is particularly true where assaults or batteries are committed by bartenders, cashiers, and managers of restaurants, managers and clerks of hotels and inns, and other similar employees who, as part of their duties, are expected to maintain order about the premises, and by store detectives.’ (pp. 119, 120.)” (pp. 64-65.) (See, also, anno. Assault by Servant, 34 ALR 2d 372 [Theaters], 424-427.) In the case at bar the trial court in reaching its decision apparently regarded the employee in question as merely a concession stand employee. We think the record indicates she was more than that. She was specifically requested to remain after the concession stand closed and assist in closing the theater. Part of those duties consisted of preventing unauthorized entry after the ticket office had closed. Despite the fact she may not later have been paid by her employer for her services that night she was appellee’s employee at the crucial time. Although she may have used poor judgment in her actions her own testimony indicates she was moti vated by a desire to further theater interests! rather than personal reasons such as malice or spite. She was shepherding two apparent intruders to the assistant manager for investigation when the shotgun discharged. There was evidence that the fact she had the gun on the premises was known to that individual, who himself carried a gun. The facts presented indicate certain employment at the drive-in was of a nature where the display and use of guns was contemplated in the furtherance of the employer’s business in preserving order. We think the facts bearing upon whether she acted within the scope of her employment were such as to raise an issue requiring jury determination. Accordingly it must be held the trial court erred in granting summary judgment. The judg.ment is reversed and the cause remanded with directions to proceed with trial of the action. APPROVED BY THE COURT.	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The opinion of the court was delivered by Prager, J.: This case involves the interpretation and constitutionality of K. S. A. 1972 Supp. 21-4616 which authorizes the annulment of a conviction on application of the defendant. The defendant-appellant, Lauren James Miller, having previously been convicted of burglary and grand larceny, sought to avail himself of the provisions of 21-4616 by moving the court for the annulment of that conviction. The facts in the case are not in dispute and are as follows: Some time prior to November of 1969 the defendant, Lauren James Miller, then age 17, along with several other young men was caught stealing from construction sites in Reno county. The defendant and his associates were charged with third degree burglary and grand larceny. The defendant entered a plea of guilty to those offenses and was sentenced on November 19, 1969, to serve one to five years on each count concurrently in the industrial reformatory. The execution of the sentence was suspended and the defendant was placed on probation for a period of three years. With the exception of this conviction and one traffic ticket, the defendant has no criminal record of any kind. After the defendant was placed on probation he fell in love. In the spring of 1970 he learned that his fiancee was pregnant. He and his mother jointly consulted his probation officer in Hutchinson and requested permission to marry. He was led to believe that permission to marry would be granted. Instead, a petition to revoke defendant’s probation was filed. On June 2, 1970, the district court revoked the defendant’s probation and ordered him to serve the sentence previously imposed the prior November. It is undisputed in the record that the hearing to revoke the defendant’s probation was summary in nature and that the sole and only reason for tire court’s revoking defendant’s probation was that he had got his fiancee pregnant and they wanted to get married. The defendant then served from June 7, 1970, until June 7, 1971, in the reformatory at Hutchinson. On the latter date the defendant was placed on parole by the state board of probation and parole. After his release defendant delayed marrying his fiancee upon the advice of his parole officer until he had a steady job and sufficient funds to support a wife and his child who was bom in October 1970. Since his release on parole the defendant has been gainfully employed at all times; started a business of his own, recovering waste oil and cleaning dirt traps at filling stations and garages; purchased a home; married his fiancee in February of 1972; has an excellent relationship with his wife and parents; has matured and has committed no criminal violations other than one speeding ticket. The defendant’s parole officer was of the opinion that the defendant had proved his ability to be a decent law-abiding citizen and recommended that his parole discharge date be moved up from June 7, 1973, to April 7, 1973. In his quarterly report submitted to die board of probation and parole irr February 1973, defendant’s parole officer concluded that the defendant had proved his ability to be a decent law-abiding citizen and that he should be “awarded” for his efforts. In June of 1973 the defendant learned that two of his associates, who had been convicted at the same time, had had their records annulled in April or May of 1973. Thereafter the defendant moved the district court of Reno county for an annulment of his conviction pursuant to 21-4616. On June 25, 1973, a hearing was held in district court on the defendant’s motion for annulment of conviction. At this hearing there was testimony by the defendant, Lauren James Miller, his wife, Jessie Lee Miller, and his mother, Julie A. Miller. This testimony brought forth the facts just stated above. In addition the defendant testified that his sentence and confinement in the reformatory taught him respect for the law and he felt expungement of his conviction would aid him in obtaining future employment since it would relieve him of his criminal record. He further testified that he was 17 years of age at the time of the commission of the crime for which he was convicted, that he had been involved in no criminal activities since his conviction, that he is a law-abiding citizen of the community of Wichita in which he lives, and that his marriage and family have given him an incentive to accept both the responsibilities of his marriage and of citizenship in his community. The defendant further testified that he paid approximately $90 to $100 in restitution through the district court on his original probation order but that on advice of his parole officer, Mr. Lindt, he had not paid anything further after being sentenced to the state reformatory. Defendant stated he would be willing to pay the total amount of restitution if necessary for the annulment of his conviction. Jessie Lee Miller, defendant’s wife, testified that she and the defendant were married in February of 1972, fallowing the birth of their child in October 1970. She stated that defendant was a dutiful husband, a good father and a good provider. It was her judgment that the failure to expunge her husband’s criminal record would be a great impediment to her husband’s future. She and her husband have an excellent relationship. They have purchased a house and are doing very well. The only other witness at the hearing was Julie A. Miller, the defendant’s mother. She testified that the only reason that her son’s probation had been revoked in the first instance was because of his desire to marry his fiancee and that she had no knowledge of any other violation of her son which could have resulted in a revocation of his probation. She urged the court not to require her son to go through life with a criminal record since he has made a sincere and successful effort to right the wrong which he committed. It is obvious from the record that the district judge was concerned about the defendant’s getting his fiancee pregnant after the defendant was placed on probation. He asked the defendant’s mother if she considered that worthy conduct of him. In reply she stated that she did not consider it worthy conduct but when they wanted to go ahead and get married she did not consider it a crime. Thereupon the following colloquy took place between court and counsel: “The Court: ‘The court is going to find that K. S. A. 21-4616 is unconstitutional in that it provides the Court with no guidelines to exercise the discretion that it has given the Court, and the word “May” is used and there is no guidelines whatsoever how to exercise the discretion. The Court will find that in this case the record shows that it should not be expunged.’ “Mr. McMillan: ‘Thank you, your Honor. May I ask the Court is that the only reason for not granting the relief asked for is the unconstitutionality question?’ “The Court: ‘Well that plus the fact of the record that I have heard here now.’” (Emphasis supplied.) It should be noted that the court held 21-4616 unconstitutional on its own motion and that in addition thereto denied relief on the basis of the testimony presented at the hearing. The defendant has taken a timely appeal to this court from the denial of his motion for annulment of his conviction. We should first examine carefully the provisions of K. S. A. 1972 Supp. 21-4616 which states as follows: “21-4616. Annulment of certain convictions; effect. Every defendant who had not attained the age of twenty-one (21) years at the time of the commission of the crime for which he was convicted, and who has served the sentence imposed or who has fulfilled the conditions of his probation or suspension of sentence for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court may set aside the verdict of guilty; and in either case, the court shall thereupon dismiss the complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the crime of which he has been convicted, and he shall in all respects be treated as not having been convicted, except that upon conviction of any subsequent crime such conviction may be considered as a prior conviction in determining the sentence to be imposed. The defendant shall be informed of this privilege when he is placed on probation or suspended sentence. “In any application for employment, license or other civil right or privilege, or any appearance as a witness, a person whose conviction of crime has been annulled -under this statute may state that he has never been convicted of such crime.” (Emphasis supplied.) This statute applies only to youthful offenders who had not attained the age of 21 years at the time of the commission of the crime. 21-4616 was enacted in 1971. In 1973 the legislature enacted K. S. A. 1973 Supp. 21-4617 which made possible the expungement of criminal records of adult offenders who were 21 years of age or older at the time of the commission of the crime. A similar provision was placed in the Code of Procedure for Municipal Courts in section K. S. A. 1973 Supp., 12-4514, which provides for the annulment of convictions in municipal courts. Over the past 50 years American correctional law, turning away from the vengeance concept, has focused increasingly on the rehabilitation of the individual offender and the development of means and practices appropriate to that end. It has become common knowledge today that a criminal record is a serious handicap which works against the rehabilitation of the ex-offender. The consequences of a criminal conviction include not only the formal penalties and restrictions imposed by law but also collateral sanctions incidentally imposed by society. Although the criminal offender has paid his debt imposed by law, society stigmatizes him with the ex-convict label. In United States v. Morgan, 346 U. S. 502, 98 L. Ed. 248, 74 S. Ct. 247, the Supreme Court of the United States pointed this out in the following language: “. . . Of course the record of a conviction for a serious crime is often a lifelong handicap. There are a dozen ways in which even a person who has reformed, never offended again, and constantly endeavored to lead an upright life may be prejudiced thereby. The stain on his reputation may at any time threaten his social standing or affect his job opportunities, . . .” (p. 519.) One author describes the problem in this manner: “It is not the explicitly articulated disabilities which are most troublesome to the reformed offender. It is rather the less-direct economic and social reprisals engendered by his brand as an adjudicated criminal. The vagaries of public sentiment often discriminate against persons with a criminal past, with very little regard for the severity of the offense, and they do not frequently distinguish between persons arrested and acquitted or otherwise released and persons convicted. This is particularly true in the vital matter of employment, which perhaps as much as anything else influences a mans concept of himself and his worth, and accordingly influences the values which guide his conduct.” (Gough, The Expungement of Adjudication Records of Juvenile and Adult Offenders: A Problem of Status, 1966 Wash. U. L. Q. 147 at 153.) For over a decade the National Council on Crime and Delinquency has urged the passage of legislation to authorize the trial courts of this country to annul a record of conviction, thus facilitating the return to normal living of an offender. The National Council drafted a model act to achieve this purpose which may be found along with a discussion of the problem in 8 Crime and Delinquency 97. More recently the American Rar Association Standards for Criminal Justice have recognized the necessity for such legislation. Standards for Criminal Justice relating to Probation § 4.3 provides as follows: “4.3 Criminal record. Every jurisdiction should have a method by which the collateral effects of a criminal record can be avoided or mitigated following the successful completion of a term on probation and during its service.” The advisory committee which drafted this standard stated that it was not as concerned with the form which such statutes take as it is with the principle that flexibility should be built into the system and that effective ways should be devised to mitigate the scarlet letter effect of a conviction once the offender has satisfactorily adjusted. Several states including Alaska, Arizona, California, Delaware, Idaho, Indiana, Michigan, Minnesota, Missouri, New Jersey, Texas, Utah, Washington and Wyoming have already enacted progressive legislation aimed at the expungement of criminal records and annulment of related convictions. These statutes take a wide variety of forms but all are directed to the basic purpose of assisting an ex-offender to overcome the stigma of a criminal record. A procedure for setting aside a conviction is also provided in the Federal Youth Corrections Act, 18 U. S. C. A. § 5021. In Mestre Morera v. United States Immigration & Nat. Serv., (1st Cir. 1972) 462 F. 2d 1030, it is stated that the purpose of that federal statute is to relieve the youthful offender not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction. In a general way it may be stated that annulment of conviction statutes, often called expungement statutes, do not merely lift dis abilities resulting from conviction and restore civil rights; they have the legal effect of restoring the reformed offender to his status quo existing prior to the conviction. We think it clear that K. S. A. 1972 Supp. 21-4616 was enacted to relieve youthful offenders from the social and economic stigma resulting from criminal convictions and to offer them an added incentive to conform to social norms and to participate in our society without the added burden of a criminal conviction. An annulment of conviction statute is an aid to an ex-offender in regaining his human dignity and self-esteem. It is a legislative recognition of tire fact that ex-offenders need the understanding and respect of others — not their scorn and ill will. Such statutes are based on the philosophy that fallen men can rise again and should be helped to do so. With this background in mind we now turn to the specific issues which have been raised on this appeal. The appellant contends that the provisions of 21-4616 are mandatory, not discretionary, and that annulment of conviction relief must be granted automatically when the defendant shows that he had not attained the age of 21 years at the time of the commission of the crime for which he was convicted and that he has either served the sentence imposed or successfully fulfilled the conditions of his probation or parole. It is true that in some states statutory annulment of conviction provisions are held to be mandatory. This is true of California. (People v. Johnson, 134 Cal. App. 2d 140, 285 P. 2d 74.) Furthermore the setting aside of a conviction under the Federal Youth Corrections Act is automatic. We believe, however, that 21-4616 is by its express language permissive rather than mandatory and that some discretion is vested in the trial court in granting an offender annulment of his conviction. We note in particular that the word “may” is used with reference to the court’s granting permission to the offender to withdraw his plea of guilty or to set aside a verdict of guilty and that in either case the court “shall” thereupon dismiss the charges against the defendant. We interpret the statute to place in the trial court some discretion in granting the relief. Having found the granting of relief under the statute resting within the sound discretion of the trial court, we now turn to the constitutional issue which has been raised. The trial court held 21-4616 unconstitutional because it does not provide the district court with specific guidelines to exercise its discretion. The state in its brief contends that granting to a district court the power to annul a conviction constitutes a delegation of legislative power, and since no standards for the exercise of this power have been set forth, the statute is unconstitutional. We do not agree with the state or with the trial court that the power to annul a criminal conviction is necessarily a legislative power. In our judgment the statute simply provides to the district courts of this state an additional tool to be used in the sound discretion of the court as an aid to the rehabilitation of criminal offenders. Like the granting of probation the annulment of a conviction is a part of the sentencing process. The sentencing judgment is a judicial function and the granting or denial of probation under 21-4603 is a part of the sentencing process vested in the trial court. (State v. Owens & Carlisle, 210 Kan. 628, 504 P. 2d 249.) Likewise the granting or denial of an application for annulment of a conviction is a judicial function. Such power contemplates a judicial inquiry and the exercise of judicial discretion in the same way that a court exercises its discretion in the granting of probation, in setting conditions of probation, and in deciding whether or not probation should be revoked. The granting or denial of an application for the annulment of a conviction rests within the district court’s sound discretion. We hold that the trial court erred in finding that 21-4616 is unconstitutional. The state next takes the position on this appeal that 21-4616 may be applied arbitrarily or discriminatorily by judicial whim or caprice,, that the statute permits the district court to have one result in one case and an opposite result in the next case in the same court on the same day and under the same or similar facts. The state argues that the court is sole judge of the exercise of its discretion and that there are no rules, conditions, restrictions, limitations, yardstick, guides or other indicators governing the court in its application of the statute. We do not agree. Judicial discretion must always be exercised within the bounds of reason and justice. Judicial discretion is abused when it is arbitrary, fanciful or unreasonable, where no reasonable man would take the view adopted by the trial court. In exercising its judicial discretion under 21-4616 the district court must act reasonably with the end in mind of achieving the legislative purpose. It should take into consideration the objectives sought by the legislature including the protection of the public and the rehabilitation of the offender. It is contemplated that before the district court acts on the motion it will require any necessary investigation through the resources of the probation department or other sources available to it. It is assumed that the court will make a judicial inquiry and not act in a vacuum of facts. We hold that the filing of a simple request with supporting evidence to show compliance with the statutory requirements should constitute prima facie entitlement to the annulment of a conviction. Annulment of conviction should be granted unless the court finds some strong affirmative cause to deny it. In other words the norm should be the granting of relief under 21-4616 unless the state shows some good compelling reason not to grant it. The district court might well be justified in denying the relief where the evidence shows that the defendant has some marked propensity toward continuing criminal conduct or that he remains a clear and present danger to the public. Annulment of conviction should not, however, be denied for some frivolous reason. With these principles in mind we now consider whether the trial court abused its discretion in denying annulment of conviction to the defendant, Lauren James Miller. We interpret the record to mean that the trial court considered the evidence presented and denied the motion. On the entire record before us here we find that the district court abused its discretion in not granting to the defendant, Miller, an annulment of his conviction. The facts presented at the annulment hearing clearly demonstrated that the defendant has made every conceivable effort to conform to the norms and demands of our society. He received an early discharge from his parole on the recommendation of his parole officer who concluded that the defendant had proved his ability to be a decent law-abiding citizen. He has a steady job with which to support his wife and family. He has purchased a home. There is no evidence whatsoever in the record to show that the defendant has any propensity toward continuing criminal conduct or that he is a clear or present danger to the public. The evidence is all to the contrary. The judgment of the trial court is reversed and remanded with directions to the district court to enter an order annulling the defendant’s conviction in accordance with the provisions of K. S. A. 1972 Supp. 21-4616.	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The opinion of the court was delivered by Foth, C.: Appellant Paul Dalton Betts was convicted of involuntary manslaughter on a charge that while driving his automobile under the influence of intoxicating liquor he struck and killed a pedestrian. His primary contention on appeal is that the state’s only evidence of his intoxication was too remote in time to be admissible or to provide the basis for a reasonable inference of intoxication at the time of the accident. He stipulated before trial that he was driving the automobile that struck the deceased, and that she died as a result. The deceased, Reiko Iwatani, was a musician with the Mitch Miller orchestra. We are told she was a citizen of Japan. The orchestra had given a concert in Garden City on the evening of Ootober 19, 1972, and after the concert she and other members of the orchestra returned to their quarters at the Continental Motel on the south side of Jones Avenue, a four-lane street carrying U. S. Highway 50. Late in the evening she and Mary Lou Steppacher, another musician, went out for a midnight snack at the Flamingo Tun, located a little west of the Continental and across the street to the north. Shortly after midnight the two headed back toward their motel, and were joined in the Flamingo parking lot by a third musician, James Boyd. The three of them crossed Jones Avenue to the south edge and, because there were no sidewalks and the grass was wet from an earlier rain, proceeded east in the street near the curb. They were, therefore, walking along the right edge of the street, with eastbound traffic. Mr. Boyd testified that as they walked he regularly looked over his shoulder for approaching cars. Whether he saw appellant’s car approaching does not appear in the record. Miss Steppacher also kept a lookout for traffic; she saw none coming from the east, but did see appellant’s car coming up behind them. When she saw it “veering into the outside lane of traffic” she tried to warn her companions, but was too late. She heard a thud, and later realized that Mrs. Iwatani had been hit. A third witness to the incident was Ronald Brown, yet another member of the orchestra. He was standing in the Flamingo' parking lot when he saw the appellant’s car approaching. To him the car seemed to be “bumping along the curb.” When he heard the screaming and saw the commotion he called an ambulance. Both Boyd and Brown testified that appellant’s car appeared to be traveling at a lawful rate of speed before the impact. (The speed limit dropped from 40 to 30 m. p. h. at about this point.) Boyd added that the car didn’t appear to speed up afterward or speed away. Neither did it stop. Officer Robert Seymour of the Garden City police department was on patrol when he received the accident call at about 12:16 a. m. on October 20; he arrived at the scene at 12:17. After completing his on-the-scene investigation he commenced a street-by-street search for the light colored station wagon which witnesses described as the fatal instrumentality. At about 1:40 he received a call that the car had been located, and proceeded to an apartment that turned out to be appellant’s. There he joined Sergeant James Toner of the police department and Officer Cook of the Finney county sheriff’s office. After a cursory examination of the station wagon the three officers approached appellant’s apartment at about 1:50 or 1:55 a. m. Appellant’s daughter answered the door, and appellant invited the officers in. They “advised him of his rights” and asked him to dress and come down to the police station with them. Officer Seymour was permitted to testify, over appellant’s objection, that he noticed the smell of alcoholic beverage on appellant’s breath, that his concentration was impaired, that it took him an abnormally long time to tie his shoes, that his speech was slurred, and that he seemed to be “incoherent as to what was really going on.” In Officer Seymour’s opinion appellant was intoxicated. Later that morning, about 3:00, he again saw appellant at the police station and concluded that at that time “he was still intoxicated.” Sergeant Toner also told of going to appellant’s apartment, reading him the Miranda warning, and asking him to go to the police station. He described appellant as follows: “Well, his speech was slurred. He wasn’t walking very straight. He had quite a time getting his shoes on, getting them tied, putting his shirt on. He seemed like he didn’t know really what was going on about him.” Asked his opinion of appellant’s condition, Sergeant Toner testified, “I believe the man was drunk.” The sergeant also told about his police station interrogation of the suspect between 2:15 and about 2:45. Without objection he read to the jury his memorandum of that interrogation: “Question: Were you at the Continental Club that evening?’ His answer was ‘yes, (sic) left there about quarter of 12:00 midnight.’ Question: Where did you go then?’ Answer: ‘Don Farr picked me up some bread for steaks at the Quik Shop and came back about 11:30 or so; I don’t know exactly.’ Next question: What time did you leave for home?’ His answer was: ‘About quarter of 12:00, about that time. What is this about?* Statement by myself was We believe you were involved in an accident we are checking on.’ Statement by Mr. Betts: ‘Í was not involved in any accident tonight. 1 did not hit any other cars. Go check my station wagon. I didn’t hit any other car.’ Last question.: ‘Which way did you go home from the club?’ His answer was: ‘Highway 50 to Five Points and on down the street that we changed on over to Gardendale. A Corvette cut me off by the curb when I left.’ Question by Betts: ‘Where was I involved in this accident?’ Answer by myself: ‘By the Continental Motel.’ Statement by Betts: ‘I didn’t have an accident by the motel.’ Question: “Were you driving your station wagon tonight?’ Answer: ‘You bet.’ Question: ‘No one else drove it except Farr who went to the Quik Shop for bread and returned?’ His answer was ‘Right’.” (Emphasis added.) The interrogation was broken off by Captain Richard Rohleder, who arrived at the police station around 3:00 a. m. He had been to the hospital, where he learned that Mrs. Iwatani had died, and to appellant’s apartment, where he had removed her motel key from the crevice between the hood and fender of appellant’s station wagon. Asked his opinion of appellant’s condition the captain replied, “he wasn’t what you call drunk but he had too much to drink in him yet to question him on something that he might not understand too good afterwards.” His opinion was based on numerous previous encounters with appellant, both drunk and sober. Five of appellant’s six points on appeal turn on the probative value to be ascribed to the officers’ testimony as to his intoxication: Seymour’s at 1:50 and 3:00; Toner’s at 1:50; and Rohleder’s at 3:00. The accident, it may be recalled, occurred no later than 12:15. His basic contention is that drunkenness one-and-one-half to almost three hours later is too remote to demonstrate drunkenness at the time of the accident. Hence, he argues: (1) he should have had a dismissal at the close of the state’s case; (2) the verdict was not supported by the evidence; (3) the evidence of intoxication was erroneously admitted; (4) an instruction on intoxication should not have been given because not based on substantial evidence; and (5) a mistrial should have been declared because of all the foregoing errors. In analyzing this overall contention it must be borne in mind that, by virtue of a pre-trial oral amendment of the information, appellant was charged with involuntary manslaughter under K. S. A. (1972) Supp. 21-3404: ‘‘Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. . . .” To sustain its case under this statute it was incumbent on the state to prove two elements: first, an unintentional killing; and second, that appellant was at the time either engaged in the commission o£ a misdemeanor or was operating his car in a wanton manner. There was no question as to the first element; the homicide was conceded. As to the second, the state became committed to the “misdemeanor” theory when the trial court instructed without objection from the state that in order to convict, the jury had to find that the appellant was driving a motor vehicle while under the influence of intoxicating liquor. Wantonness was never an issue in the case. Did the evidence of appellant’s drunkenness afterwards have any probative value as to his condition at the time of the accident? If it did, our inquiry is at an end, for it would then be admissible for such weight as the jury might choose to give it. Our test on appeal, of course, is whether there was a reasonable inference of guilt to be drawn by the jury, not whether the evidence establishes guilt beyond a reasonable doubt. State v. Ulriksen, 210 Kan. 795, 504 P. 2d 232, Syl. ¶ 5; State v. Kliewer, 210 Kan. 820, 504 P. 2d 580, Syl. ¶ 5. Appellant cites, and we have been able to find, no Kansas case where evidence of drunkenness after the fact was held to be too remote. He does cite cases such as State v. Grimes, 193 Kan. 294, 392 P. 2d 926, which illustrate that in the garden variety driving-under-the-influence case, where there is an accident or an officer stops an erratic driver, the evidence of intoxication is based on observations made shortly after the time the accused was driving. The same kind of time frame was also present in State v. Townsend, 146 Kan. 982, 73 P. 2d 1124, a manslaughter case, where the court recognized that drunkenness immediately after a collision provided grounds for inferring that the defendant had done his imbibing beforehand. Such cases lend little, if any, support to appellant’s position. Indeed, in State v. Hayden, 126 Kan. 799, 271 Pac. 291, cited by him, the evidence of the defendant’s drunkenness consisted largely of observations made a considerable time after the driving in question. The defendant had swerved on the highway, hitting and forcing another car off the road. His victim got the license number from a passing motorist, secured help, got his car out of the ditch, drove four miles to the town where defendant lived, located the defendant’s house, was refused admittance, and secured the assistance of the town marshal. It was the testimony of the officers who took him into custody as to his condition at that time which was relied on to show that defendant was under the influence back at the time of the accident. That testimony, together with his earlier weaving on the road, was sufficient to uphold his conviction. Looking to cases from other jurisdictions we find a variety of results, depending upon the circumstances of each case. Where the only evidence of intoxication was the subsequent observations, an interval of two hours has been regarded as too long to give the evidence probative value. Hall v. Young, 218 Ark. 348, 236 S. W. 2d 431, 20 A. L. R. 2d 1207. Cf. Gream v. Miller (Ky., 1951), 243 S. W. 2d 502; Rawlings and Spivey v. Commonwealth, 191 Ky. 401, 230 S. W. 529. On the other hand, where there was other evidence of drinking, a doctors observations two-and-three-quarters hours after the accident were admissible in Reedy, Appellant v. Brown, 395 Pa. 382, 150 A. 2d 707. And where “There was evidence of the manner in which the car was driven, and of bottles smelling of whiskey in the car driven by defendant, having a tendency to prove intoxication,” the admission of evidence that defendant was drunk eight or ten hours after the collision was held not to be prejudicially erroneous. Nail v. State, 33 Okla. Crim. 100, 109, 242 Pac. 270. The court there observed, “It was a matter proper to be submitted to the jury, and the remoteness in point of time goes rather to its weight than to its admissibility.” (Id.) The Oklahoma court’s comment is in accord with our own holdings dealing with “remoteness” in general. In Adrian v. Elmer, 178 Kan. 242, 284 P. 2d 599, we held “Whether evidence is too remote to be admissible rests within the sound discretion of the trial court.” (Syl. ¶ 7.) The evidence there objected to was a fertility test made a year after the sale of a bull; this was claimed to be too remote to show his condition at the time of the sale. In holding there was no error, this court said, “The admissibility of this evidence was a matter to be determined by the trial court, and the weight of the testimony was for the jury.” (Id., p. 247.) See also, State v. Calvert, 211 Kan. 174, 505 P. 2d 1110, Syl. ¶ 4; Tucker v. Lower, 200 Kan. 1, 434 P. 2d 320; State v. Schuman, 151 Kan. 749, 751, 100 P. 2d 706. All in all, we think the proper test is aptly stated in Bentley v. Ayers, 102 Ga. App. 733, 117 S. E. 2d 633. There testimony of an officer that the defendant was intoxicated an hour and a half after the accident was held to be properly excluded when it was unsupported by any other evidence that he was drinking prior to or at the time of the accident. In so holding the court said: “. . . In a ruling on such a matter the trial judge must exercise his broad discretion. Not only is the length of time between the accident and evidence of intoxication an important factor but all other testimony relevant to such an issue, such as testimony that prior to the accident the defendant seemed to exercise a lack of control of his vehicle or that he had been seen drinking prior to the accident, and other such relevant testimony as would guide the trial judge in rendering his decision.” (P. 736.) In applying such, a test to the case at bar we look to see what evidence, other than the opinions of the officers, might substantiate the charge that appellant was under the influence of intoxicating liquor at the time he struck the deceased. We find the testimony of Miss Steppacher that his car “veered” from the center lane to the outside; Mr. Brown’s testimony that the car seemed to be “bumping along the curb;” the fact that he did not stop and yet took no obviously evasive action; and the fact that he self-righteously denied participation in the accident a few hours later. (Compliance with his demand that the officers “Go check my station wagon” would, of course, have produced the incriminating motel key.) This combination of circumstances, we think, cried out for an explanation. His intoxication when the officers found him supplied that want. It furnished a ready answer as to why he was driving erratically before the accident, why he departed the scene with apparent unconcern, and why he had no apparent recollection of his involvement in any untoward incident. In this case, then, the fact that appellant was drunk some time after the accident did have probative value as to his condition at the time. Such evidence was therefore admissible and, together with the other evidence referred to, provided a basis from which the jury could well have inferred his guilt. Appellant’s five points on appeal enumerated above are therefore without merit. His final point is a claim that the court should have instructed the jury on the contributory negligence of the deceased. He concedes that contributory negligence, as such, is not a defense in a homicide case. State v. Pendleton, 144 Kan. 410, 61 P. 2d 107; State v. Custer., 129 Kan. 381, 282 Pac. 1071; State v. Bowser., 124 Kan. 556, 261 Pac. 846. He does contend that the jury should have been instructed to take the deceased’s conduct into account in determining causation, as indicated by those cases. It is clear that all the circumstances of the deceased’s conduct were before the jury, i. e., that she was walking on the wrong side of the road at night. Likewise before the jury was appellant’s stipulation that he was driving his car, that it was his car that struck the deceased, and that she died as a result of the striking. Thus the fact that appellant was an effective cause of Mrs. Iwatani’s death was stipulated. Appellant’s requested instruction is not in the record, so we are somewhat handicapped in assessing this claim. To acquit, the jury would have had to find that her conduct was the sole cause of her death — that appellant’s drunkenness had nothing to do with it. While perhaps the jury should have been instructed that they could so find, there was absolutely nothing in the evidence which would fairly support such a finding. Thus, even if the requested instruction took this tack we cannot say that its refusal resulted in prejudice. Moreover, we are inclined to doubt that such was the thrust of the missing instruction. In his points relied on appellant puts his argument this way: "The Court erred in refusing the defendant’s proposed instruction relating to the deceased’s act as contrary to the laws of the State of Kansas and the Ordinances of the City of Garden City, Kansas.” If, as this language indicates, his request was actually aimed at the fact that walking on the wrong side of the road is a violation of our statutes and of some ordinance of the city of Garden City, its refusal was clearly proper. There was testimony, objected to but not stricken, that walking with traffic violated a city ordinance. But the fact of violation would at best go to show contributory negligence, which he now concedes is no defense. In either event, we are unable to ascertain prejudicial error in refusing the requested instruction, whatever it may have been. The judgment is affirmed. APPROVED BY THE COURT.	[ -16, 106, -48, -66, 58, 96, 26, -70, -15, -25, -80, -13, -83, -37, 77, 41, -5, -3, 85, 107, -11, -73, 7, 9, -78, -13, 122, -42, -78, -54, -2, -9, 76, 32, 74, 93, -26, 75, -59, 90, -116, 30, -101, -16, 24, -110, 48, 59, -62, 15, 117, 15, -57, 42, 28, -42, 41, 40, 91, -83, -32, -8, -55, -123, -3, 18, -94, -108, -66, -125, -40, 25, -103, -79, 8, -72, 51, -92, -124, -44, 101, -103, 4, 102, 99, 0, 93, 77, -88, -103, 46, 110, 63, -121, 28, 89, 81, 32, -105, 93, 120, 16, 10, 104, -35, 85, 93, -32, -123, -50, -80, -111, -51, 50, -110, -62, -53, -127, 34, 101, -49, -10, 94, 100, 114, -101, 23, -42 ]
The opinion of the court was delivered by Fatzer, C. J.: This appeal is from an order of the district court overruling a motion by the landowners to allow as court costs an amount to be paid to their attorney as attorney fees in an eminent domain proceeding. Two other appeals from the same district court present the identical legal question. The three appeals were ordered consolidated for hearing upon the written stipulation of the parties that our decision in Justin W. Fellers and Georgia Fellers, his wife, versus The State Highway Commission of Kansas, No. 47,093 will be binding upon and control the court’s decision in Heber Johansen and Pauline V. Johansen, his wife, versus The State Highway Commission of Kansas, No. 47,180, and Francis Alvin Thompson and Wanda Lois Thompson, his wife, versus The State Highway Commission of Kansas, No. 47,196. On a date not disclosed by the record, the State Highway Commission instituted eminent domain proceedings in the district court of Osage County to acquire certain farm land of the appellants for highway purposes. (K. S. A. 26-501.) Appraisers were duly appointed to determine and report any damage to the appellants’ land occasioned by the taking. On March 15, 1971, the appraisers filed their report and awarded damages to the appellants in the amount of $27,669.25 by reason of the taking. Thereafter, the State Highway Commission appealed the award to the district court. (K. S. A. 26-508.) The appeal was tried to a jury which, on November 21, 1972, returned a special verdict finding the appellants were damaged in the amount of $30,000, an increase of $2,330.75 over the award of the court-appointed appraisers. On December 15, 1972, the appellants-Fellers moved the court for an order allowing attorney fees pursuant to K. S. A. 1972 Supp. 26-509 (now K. S. A. 26-509). As indicated, the district court overruled the motion, finding the statute inapplicable to appeals pending prior to its effective date. This appeal followed. K. S. A. 26-509 authorizes the allowance of attorney fees as costs when the condemner appeals the award of the court-appointed appraisers, and upon appeal a jury finds for the condemnee in an amount greater than the appraisers’ award. The statute became effective on July 1, 1972. The State Highway Commission’s appeal was perfected in May, 1972, almost two months prior to the statute’s effective date. The case was tiled and the verdict rendered in November, 1972, over four months after the effective date of the statute. The instant case is controlled by our decision in City of Wichita v. Chapman, 214 Kan. 575, 521 P. 2d 589. There, the condemner, the City of Wichita, appealed the appraisers’ award two months prior to the effective date of K. S. A. 26-509. A verdict was returned on December 20, 1972, in which the jury determined the damages resulting from the taking were greater than those awarded by the appraisers. The district court allowed the condemnees attorney fees as costs. The city perfected an appeal to this court contending, among other things, the allowance of attorney fees was an unlawful retrospective application of K. S. A. 26-509. Finding the contention without merit, we held: "In an eminent domain proceeding where the condemner appeals the award of the court appointed appraisers, and the jury renders a verdict for the landowners in an amount greater than the appraisers’ award, the provision of K. S. A. 26-509 giving the trial court discretionary power to allow as court costs an amount to be paid to the landowner’s attorney as attorney fees, is remedial and may be applied to actions pending at the time the statute became effective on July 1, 1972.” (Syl. ¶5.) The district court erred in finding the statute inapplicable. The case is reversed and remanded, with direction that the district court determine whether, in the exercise of its discretionary power as authorized by K. S. A. 26-509, it will allow as court costs an amount to be paid to the appellants’ attorney as attorney fees. It is so ordered.	[ -47, -22, -15, 125, 15, 66, 26, -103, 73, -31, -28, 83, -85, -54, 17, 59, -13, -115, -44, 107, -41, -77, 87, -64, -106, -13, -7, -49, -5, 77, -28, -42, 76, 49, 66, 21, 102, -62, 13, 92, -114, 2, -119, -36, -55, 98, 56, 111, 86, 75, -79, -81, -13, 41, 29, -29, 104, 44, -101, 33, 1, -80, -85, -107, 91, 22, 16, 38, -102, -63, 88, 42, -104, -79, 8, -24, 119, -90, 86, -11, 5, -103, 8, -82, 98, 17, 49, -49, -4, -104, 14, -48, -115, -25, -110, 88, 66, 1, -106, -100, 113, 86, 67, -2, -26, 5, 95, 108, -121, -54, -46, -109, -113, 125, -119, 3, -21, -127, 48, 97, -81, -30, 79, -57, 58, -97, 7, -80 ]
The opinion of the court was delivered by Harman, C.: John A. Maier, Jr., was convicted by a jury of theft of property valued at more than: fifty dollars. His posttrial motions were overruled, he was sentenced and now appeals. The type of larceny upon which appellant stands convicted is that defined in K. S. A. 1973 Supp. 21-3701, as follows: “Theft. Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property. “(d) Obtaining control over stolen property knowing the property to have been stolen by another.” K. S. A. 1973 Supp. 21-3110 contains this further definition: “(12) ‘Obtains or exerts control’ over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.” The foregoing define that which was known under our old crimes act as receiving stolen property (K. S. A. 21-549). The single specification of error presented and briefed by appellant is that the evidence is insufficient to support the verdict of guilt and the judgment of conviction. Summarization of that evidence demonstrates the contrary. ,The property stolen consisted of several color television sets and two stereo record players owned by Charles Thomas, an appliance dealer in Altamont, Kansas. During the early morning hours of December 27, 1971, two men, Donald J. Reeve and Roger Sonntag, broke into the Thomas business building at Altamont and removed the items in question. They transported them in a van to a house in Parsons which appellant was sharing with John Lane, a captain on duty with the army reserve in Parsons. A day or two before the theft appellant had told Sonntag that if Sonntag ever had any stolen goods he would “fence the job”, meaning he would find persons to buy the merchandise. Reeve and Sonntag informed appellant they had some television sets which they had stolen from the Thomas Implement Company. Appellant told them to bring the sets inside. The pair left the stolen articles in the house with appellant. The following day appellant sold one of the television sets in Parsons and as a result gave each of the two $25.00. Thereafter appellant sold two more television sets and gave Sonntag $45.00. Reeve asked for more money but appellant replied he didn’t have any more. Sonntag later removed some of the TV sets from the house. Reeve and Sonntag each pled guilty to the theft of the articles in question. One received probation and the other was committed to the reformatory. Both testified against appellant. Other state witnesses included the owner of the purloined property, Captain Lane and the two persons who had bought the three TV sets from appellant. Lane testified that upon his return to the house shared with appellant two TV sets were there. When quizzed about them, appellant said they weren’t Lane’s concern. Lane told appellant to remove them before morning. The next morning the sets were .gone. Appellant had previously told Lane to discount any rumors he might hear about stolen television sets. Documentary evidence supported the incriminating sales by appellant and the requisite value of the stolen property was sufficiently established. Appellant took the witness stand in his own behalf. He admitted that Reeve and Sonntag brought the TV sets to the house he was sharing with' Lane. He asserted the pair stated the sets were for Lane, who was not tihen in Parsons. He denied being told or knowing they were stolen. He admitted selling the sets, saying he did so because he owed money to Lane, which money Lane needed. In short, there was a mass of direct evidence of appellant’s guilt. Essentially appellant’s assertion of insufficiency of evidence amounts to no more than an attack on the credibility of the witnesses against him. Obviously, the jury rejected appellant’s version of events and his effort to shift responsibility for the possession and. sales of the stolen property to his fellow tenant, as it was entitled to do. In State v. Smith, 209 Kan. 664, 498 P. 2d 78, this court stated: “It is the function of the jury, not of an appellate court, to weigh the evidence and pass upon the credibility of the witnesses; and a verdict based, on substantial competent evidence will not be disturbed on appellate review.” (p. 666.) The judgment is affirmed. approved by the court.	[ 80, 104, -39, 61, 26, 98, 42, -40, 97, -75, 102, 83, -87, -58, 5, 127, -46, -35, 85, 96, -34, -93, 7, -61, -110, -69, -39, -43, -70, 75, -90, -44, 73, 32, -62, 117, 102, -128, 69, 84, -114, 34, 58, 83, -29, 96, 52, 40, 48, 10, -15, 15, 35, 42, 28, -43, 73, 46, 75, 52, 96, -6, -6, -51, 127, 22, -93, 4, -104, 5, -40, 14, -100, 121, 0, -23, 115, -90, -122, -12, 15, -117, -116, 98, 98, 32, 5, -17, -20, -104, 46, 67, -75, -89, 20, 88, 73, 45, -97, -99, 101, 16, 8, -2, -27, 20, 95, 108, 11, -50, -44, -109, 13, 112, -114, -102, -1, -95, 33, 112, -52, -90, 93, 119, 122, -97, -114, -107 ]
The opinion of the court was delivered by Lockett, J.: This lender liability action is before this court on the petition for review of a Court of Appeals decision (unpublished opinion filed April 26, 1991). Robert and Patricia Daniels purchased land and contracted with Gerald Gerleman to construct their home. On Gerleman’s recommendation, the Daniels obtained a $106,400 construction loan from Army National Bank (the bank) to construct their new home in Leavenworth County. The bank knew that Robert Daniels was a military officer stationed in Saudi Arabia on a sensitive mission and that Patricia Daniels, his wife, was living in Denver during the time the home was to be constructed. When the Daniels returned to Leavenworth, they found substantial construction defects in the house. Mrs. Daniels informed the bank of the defects. Though informed of the defects, without inspecting the house, the bank distributed the balance of the construction loan to the builder. The Daniels sued both Gerleman and the bank. Gerleman was dismissed from the action after he filed for bankruptcy. The Daniels alleged the bank breached its fiduciary duty, negligently disbursed the construction loan proceeds, and breached the covenant of good faith and fair dealing. In a separate action the bank sued the Daniels, alleging they had defaulted on the loan obligation and requesting judgment on the outstanding loan and foreclosure of the mortgage. The two actions were consolidated. Both parties moved for summary judgment. The district court granted partial summary judgment to Army National Bank, finding that no fiduciary duty was created by the loan agreement and no special relationship existed between the parties. The court reserved the remaining issues for trial. Prior to trial the unresolved issues were submitted to the district court on stipulated facts. Relying on the stipulated facts, the district court denied the Daniels’ claim that the bank negligently disbursed loan proceeds or breached its covenant of good faith and fair dealing. The district court then granted Army National Bank summary judgment on the construction note and foreclosure of its mortgage. The Daniels appealed, claiming the district court erred in ruling on summary judgment that (1) no fiduciary duty existed (a) by reason of the loan agreement or (b) by reason of a special relationship between the Daniels and the bank; (2) the bank did not breach its covenant of good faith and fair dealing with the Daniels; (3) the bank had not negligently disbursed the loan proceeds; and (4) the bank was entitled to foreclosure on the construction loan mortgage. The Court of Appeals affirmed the district court’s holding that the loan agreement did not create a fiduciary duty between the bank and the Daniels because the agreement allowed the bank to inspect the work progress and quality of workmanship for its protection, and did not require the bank to inspect for the benefit of the Daniels. It found the loan agreement created a debtor-creditor relationship, not a fiduciary relationship. It also determined that the criteria for imposing lender liability set forth in Davis v. Nevada National Bank, 103 Nev. 220, 737 P.2d 503 (1987), had not been satisfied by the Daniels. The Court of Appeals found the bank had neither breached its duty of good faith and fair dealing, nor negligently disbursed the loan proceeds to the Daniels’ builder. The Court of Appeals concluded that because the Daniels never made a payment on the construction loan note, they are in default and the bank is entitled to foreclosure of the construction mortgage. In their petition for review, the Daniels state the issues as: 1. Whether the court erred in ruling on summary judgment that no fiduciary duty existed by any special relationship between the borrowers and the bank; 2. whether the court erred in ruling on a submission of agreed facts and pleadings that the bank did not breach its covenant of good faith and fair dealing with the borrowers; and 3. whether the court erred in ruling on the submission of agreed facts and pleadings that the bank should be granted foreclosure on the construction loan mortgage. In addition, the Daniels request that the public policy stated by the Supreme Court of Nevada in Davis v. Nevada National Bank be adopted by this court. Summary judgment is proper when the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” On review, “an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. ” Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990). There are two types of fiduciary relationships, those created by contract and those implied in law from the surrounding facts and the relationship of the parties. Denison State Bank v. Madeira, 230 Kan. 684, 691, 640 P.2d 1235 (1982). The Daniels contend that the special relationship between the parties created a fiduciary duty implied in law. The traditional rule is that the lender-borrower relationship creates no special duty. Denison State Bank v. Madeira, 230 Kan. at 695. We have followed this rule, imposing liability on financial institutions only in those instances involving fraud and conflicts of interest. See Rossi, Lender Liability in Kansas: A Paradigm of Competing Tort and Contract Theories, 29 Washburn L.J. 495, 503-05 (1990) (comprehensive review of Kansas lender liability cases). Cf. Paul v. Smith, 191 Kan. 163, 170, 380 P.2d 421 (1963) (“agreements establishing fiduciary relationships, if not in writing, must be clear and convincing'”). The trial court found that the loan agreement between Major Daniels and Army National Bank did not impose a duty on the bank to inspect the construction site for the protection of the Daniels. After reviewing the contract, we agree. The agreement provides the bank may inspect the progress of the work and the quality of the workmanship, and the bank’s policy is “to make such inspections as may be necessary for its protection.” (Emphásis added.) The agreement further states the borrowers have the responsibility to contract with architects, contractors, and subcontractors, and that the bank assumes no responsibility for the performance of these contracts or the improvement of the borrower’s property. No fiduciary duty is created between the bank and the Daniels by the loan agreement. The Daniels next contend the bank knew they would be absent during construction of their home and assured them that it would be a “watchdog,” conducting periodic inspections as the home was constructed. The Daniels assert the bank not only failed to make periodic inspections during the construction of the home but also negligently disbursed loan proceeds to the builder and refused to inspect the builder’s work after Patricia Daniels notified the bank of substantial defects in the construction. There is no doubt that the bank had knowledge that the Daniels would be absent during construction of the home and was informed by the borrowers there were substantial defects in the construction of the home. However, the bank never represented that it would inspect the property for the protection of the Daniels. Major Daniels admits that the bank had no duty to inspect. It must be noted that Gerleman, not the bank, assured Major Daniels the bank would be a watchdog and control disbursements of the money on a percentage of completion basis. Although the Daniels complained of construction difficulties to the lender, they never requested the bank to cease disbursement of funds to their builder. A person who is not under any disability or disadvantage may not abandon all caution and responsibility for his own. protection and unilaterally impose a fiduciary relationship on another without a conscious assumption of such duties by the oné sought to be held liable as a fiduciary. Denison State Bank v. Madeira, 230 Kan. 684, Syl. ¶ 10. The Daniels could not unilaterally impose a fiduciary duty on Army National Bank. On several occasions Major Daniels stated that he placed his confidence in Gerleman. Major Daniels knew he would be absent during much of the construction period. He elected to enter into the construction agreement, obtain a loan from the bank, and trust Gerleman to perform the contract in a workmanlike manner. Under these facts, we cannot say the bank owed a fiduciary duty to the Daniels by reason of some special relationship between the borrowers and the bank. The Daniels also complain that the bank breached its duty of good faith and fair dealing. Kansas courts imply a duty of good faith and fair dealing in every contract. Parties shall not “intentionally and purposely do anything to prevent the other party from carrying out his part of the agreement, or do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987). In dealing with good faith arguments against lenders by borrowers, we have stated the test of good faith is subjective and requires only honesty in fact. Karner v. Willis, 238 Kan. 246, 249, 710 P.2d 21 (1985). In Karner, the lender accelerated the borrower s note before an impending garnishment attached, even though the note was not delinquent. The court upheld the lender’s action because the note permitted the bank to accelerate the terms of the debt if it deemed itself insecure, and there was substantial competent evidence to support the lender’s determination. 238 Kan. at 247, 249. Similarly, in Riley State Bank v. Spillman, 242 Kan. 696, 750 P.2d 1024 (1988), the court held the bank did not breach its duty of good faith by enforcing the terms of a security agreement even though there was a history of nonenforcement, the bank failed to warn the borrower the agreement would be enforced, and the bank breached the peace to secure the collateral. Army National Bank did not breach its duty of good faith and fair dealing by failing to inspect. Neither the loan agreement nor any special relationship between the parties imposed a duty on the bank to inspect; therefore, there was no such duty to breach. Further, the bank did not intentionally or purposely prevent Gerleman from properly constructing the Daniels’ house. The bank was not aware of any problems with the construction of the home until the loan proceeds had been substantially disbursed. And, most important, the Daniels never specifically requested the bank to cease distribution of the funds to their builder. The trial court correctly determined the bank had not breached its duty of good faith and fair dealing. The Daniels next request that the public policy stated by the Supreme Court of Nevada in Davis v. Nevada National Bank, 103 Nev. 220, that lenders cannot disregard a borrower’s request to cease making payments to a builder after substantial construction deficiencies are reported to the lender, be adopted by this court. In Davis, borrowers brought action against a bank which made a construction loan to recover for the bank’s failure to adhere to the borrowers’ instructions to cease making payments to their builder after substantial construction deficiencies were discovered. The district court granted the bank’s motion for summary judgment, and the borrowers appealed. The Supreme Court of Nevada reversed the district court, reasoning that lender liability may arise under a construction loan when: (1) the lender assumes the responsibility or the right to distribute loan proceeds to parties other than its borrower during the course of construction; (2) the lender is apprised by its borrower of substantial deficiencies in construction that affect the structural integrity of the building; (3) the borrower requests that the lender withhold further distributions of loan proceeds pending the satisfactory resolution of the construction deficiency; (4) the lender continues to distribute loan proceeds in complete disregard of its borrower’s complaints and without any bona fide attempt to ascertain the truth of the complaints; and (5) the borrower ultimately is dam aged because the substance of the borrower’s complaints was accurate and the borrower is unable to recover damages against the contractor or other party directly responsible for the construction deficiencies. 103 Nev. at 224. The Nevada Supreme Court noted that the bank, which had made the construction loan and was retaining the funds pending disbursement by the bank to the contractor, had a duty to conduct a reasonable investigation and reach bona fide conclusions as to the validity of the borrowers’ complaints of significant structural deficiencies in the project. The court held that a lender may not with impunity disregard its borrower’s complaint of substantial construction deficiencies affecting the structural integrity of the project when the construction lender has granted a loan but retained the funds pending distribution to the contractor itself. 103 Nev. at 222. The Nevada court narrowed its ruling by explaining that nothing it had said should be interpreted beyond the comparatively narrow confines of the instant case. It noted that specifically, under usual construction loan terms and conditions, no lender should consider itself at risk if it elects not to generally inspect the progress of the construction of a project financed by the lender. It stated a lender is not to consider itself at risk if it volitionally elects to inspect and does so negligently or ineffectively. 103 Nev. at 223. We agree with the holding of the Nevada court and that the ruling in Davis v. Nevada National Bank must be narrowly construed. Here, although the bank assumed the right to distribute the loan proceeds to a party other than its borrowers during the course of construction, and the lender was apprised by the borrowers of substantial defects in construction such that the structural integrity of the building was threatened, the borrowers did not request that the lender withhold further distribution of the loan proceeds. Without a request from the borrowers to cease distribution of the funds, there is no duty on the lender to withhold the funds. The final question is whether the bank is entitled to foreclosure of its construction loan mortgage. It is uncontroverted that the Daniels never made a payment on the note. The loan is in default and Army National Bank is entitled to judgment on its note and foreclosure of its mortgage. The judgment of the Court of Appeals affirming the district court is affirmed.	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The opinion of the court was delivered by Abbott, J.: This is an appeal by neighboring landowners of the decision of the Board of County Commissioners of Johnson County (BOCC) approving Resolution No. 86-88, a request by the City of Lenexa, Kansas, for island annexation of land pursuant to K.S.A. 12-520c. This case was previously considered by this court in Cedar Creek Properties, Inc. v. Board of Johnson County Commissioners, 246 Kan. 412, 789 P.2d 1170 (1990). In that appeal, this court determined that the landowners involved in this case had standing to participate in the decision-making process and appeal. On remand, the trial court determined that the use to be made of the land could not be challenged in the annexation proceeding and affirmed the BOCC decision to allow annexation. By way of background, Holland Corporation (Holland) is the owner of a tract of land approximately 328 acres in size located west of Highway K-7 and immediately north of Highway K-10 in Johnson County, Kansas. Prior to the annexation proceedings, the BOCC passed a resolution, pursuant to K.S.A. 12-715b, granting extraterritorial zoning jurisdiction to Lenexa on a portion of land in the county near Lenexa, including the Holland tract. Holland filed an application with the Lenexa planning commission for a special use permit for the tract, seeking to operate a limestone quarry. Protest petitions to the special use permit were filed by substantially all of the property owners within 200 feet of the boundaries and by some 260 other property owners. Lenexa granted a permit and that decision was appealed. That case is pending in the trial court and is apparently stayed pending the outcome of this proceeding. Holland then petitioned Lenexa for island annexation pursuant to K.S.A. 12-520c. Lenexa approved Holland’s request by resolution and the matter was submitted to the BOCC. The BOCC held a public hearing, at which the chairman, Murray Nolte, requested that those making presentations at the hearing not get into a discussion of the zoning of the tract as this was a question of annexation only and that the zoning or use was a matter for the City of Lenexa. The BOCC unanimously adopted the resolution approving annexation. Plaintiffs are property owners (landowners) with borders in common with the Holland tract. After the BOCC’s vote, they filed separate appeals from the decision. The cases were consolidated by the trial court. Landowners alleged that under K.S.A. 12-520c, the BOCC was required to consider the proposed use of the property and erred in failing to do so. The trial court dismissed the petition, holding that the landowners had no standing to appeal. The Court of Appeals affirmed the dismissal. 13 Kan. App. 2d 734, 779 P.2d 463 (1989). We reversed. 246 Kan. at 418. The case went back to the trial court and motions for summary judgment were filed by both sides. The trial court found for Holland and this appeal followed. K.S.A. 12-520c provides, in part: “(a) The governing body of any city may by ordinance annex land not adjoining the city if the following conditions exist: “(1) The land is located within the same county as such city; “(2) The owner or owners of the land petition for or consent in writing to the annexation of such land; and “(3) The board of county commissioners of the county find and determine that the annexation of such land will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within such county. “(c) . . . Any owner or city aggrieved by the decision of the board of county commissioners may appeal from the decision of such board to the district court of the same county in the manner and method set forth in K.S.A. 19-223. Any city so appealing shall not be required to execute the bond prescribed therein.” Landowners argue that implicit in the requirement that the BOCC “find and determine that the annexation of such land will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within such county” under subsection (a)(3) is that the board must consider the proposed use to which the land will be put. The trial court found in its memorandum decision: “All parties having moved the Court for summary judgment this case can be resolved as a matter of law if no material and controlling fact is left to be determined. “The construction of 12-520c, which deals with ‘island annexation’ proscribes the issues. Interpretation of this section is a matter of first impression save for the question of ‘standing.’ Section 12-520c casts a burden on the Board of County Commissioners far different from that of K.S.A. 12-521. ‘‘Advisability of annexation of land to a municipality is a legislative rather than a judicial question. Courts may not substitute their judgment for that of a governing body. “If K.S.A. 12-520c is thought to be more than an objective standard to be met in the exercise of delegated legislative power it is evident that in this instance the Board of County Commissioners did in fact receive evidence and hear arguments with reference to prospective land use and, at the urging of defendants, rightly considered the question to be speculative and under the jurisdiction of the defendant, City of Lenexa, by virtue of an extra territorial zoning authority grant by the Board of County Commissioners in March of 1987, which plaintiff did not appeal. “It is presumed that government acts in good faith and without deceit. The objecting land owners have a clear remedy to the zoning actions of the City of Lenexa that aggrieve them. In fact, such a zoning appeal is now pending in another division of this court. “It is further presumed that all relevant evidence and arguments submitted to the Board of County Commissioners was considered. The matter of land use of the subject tract was extensively brought to the attention of the board, which thereafter made all necessary findings to comply with the statute. Had the Board of County Commissioners granted the annexation with a provision as to future land use it would have clearly exceeded its authority. “If the Board of County Commissioners or the court on review be compelled to sit in judgment of proposed land use under K.S.A. 12-520c the zoning laws a[re] rendered meaningless. “The memorandum of the Board of County Commissioners is adopted and incorporated herein by reference as the findings and conclusions of this court. The oral argument of Ms. Gillaspie is clear and convincing. “Plaintiffs having made no threshold showing of this ‘annexation’ hindering growth, Resolution No. 86-88 should be and is hereby upheld. “Summary judgment to be entered in favor of the defendant, Board of County Commissioners of Johnson County, Kansas, effective this date at plaintiffs’ cost.” In a journal entry responding to plaintiffs motion to alter or amend the judgment, the court added that it had not considered the legality of the BOCC’s grant of extraterritorial zoning authority to Lenexa. Prior to 1974, the method of annexation of land pursuant to statute was limited. Under G.S. 1949 13-202, a city could unilaterally annex land by ordinance if the land adjoined the city and if one of three conditions was met: the land was platted; the land lay within or mainly within the city; or the tract did not exceed 20 acres and had two-thirds of any line of boundary touching the boundary line of the city. The only challenge available on appeal was that the city had not followed statutory authority because, traditionally, the annexation of land by a municipal corporation was viewed as a legislative function. As such, “[t]he 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.” State, ex. rel., v. City of Overland Park, 192 Kan. 654, Syl. ¶ 3, 391 P.2d 128 (1964) (interpreting G.S. 1949, 13-202). The basic framework of G.S. 1949, 13-202 was to continue. (There were other special annexation laws, but they are not relevant for our purposes.) In 1967, 13-202 was modified by adding additional circumstances by which land could be annexed, and was renumbered as K.S.A. 1967 Supp. 12-520. L. 1967, ch. 98, § 2. Generally, the land had to adjoin the city. Under this statute, a city could annex unilaterally if one of seven conditions was met. The legislature then added K.S.A. 1967 Supp. 12-521, which provided that if land could not be annexed pursuant to K.S.A. 1967 Supp. 12-520, the board of county commissioners could be petitioned by a city for permission to annex the land. L. 1967, ch. 98, § 3. The statute also provided that the board must give notice of the hearing by publication and that no tract larger than 20 acres could be annexed if the owners thereof filed a written protest. Most importantly, at the hearing, the board was to “hear testimony as to the advisability of such annexation, and if said board shall be satisfied that such annexation or the annexation of a lesser amount of such land will cause no manifest injury to such owners, they shall so find and grant the annexation order.” (Emphasis supplied.) K.S.A. 1967 Supp. 12-521. The statute also provided that the owner or aggrieved city could appeal. The 1967 version of 12-521 was not the subject of any reported appellate cases. In State, ex rel. v. City of Overland Park, 215 Kan. 700, Syl. ¶ 1, 527 P.2d 1340 (1974), the court considered the 1967 version of 12-520 and applied the traditional standard of review, that the wisdom, desirability, expedience, and advisability of the city’s act should not be considered by a court. The court also upheld the constitutionality of the annexation procedure. Then, in 1973, the legislature made substantial changes to annexation procedure. The existing statutes were reviewed by a special committee, which recommended: “The Committee is mindful of the following criticisms of the current law: “(1) Individual property owners do not have the right to challenge annexations by cities. (K.S.A. 12-520c, enacted in 1957, provides that only the county attorney or the attorney general may challenge the validity of any city annexation ordinance.) “(2) Farm land is sometimes indiscriminately annexed by cities either for tax purposes or to protect future expansion needs. “(3) City services are not always extended within a reasonable time to a newly annexed area. “(4) Annexations by cities are sometimes accomplished without proper notice to property owners affected by such annexation. “It is the consensus of the Committee that the Kansas annexation law needs revision. The Committee is of the opinion that the rights of individual property holders should be enhanced in order to bring about more of a balance between the public and private interests." (Emphasis supplied.) Proposal No. 92 — Annexation, Report on Kansas Legislative Interim Studies to the 1974 Legislature, p. 92-4 (November 1973). The committee described the structure of the new act: “The bill would repeal all existing special annexation laws and would amend K.S.A. 1973 Supp. 12-519 et seq. in the following ways. “(1) Retain the right of cities to annex unilaterally or by ordinance in some cases, but restricts this right in certain areas. “(3) Provides that a municipality must give notice of its intent to annex land and requires the holding of a public hearing. Notice is to include a sketch or sketches of the land to be annexed to be published in a newspaper of general circulation in the county as well as the sending of a copy of such notice by certified mail to all property owners of the area to be annexed. “(4) Provides for the annexation of non-contiguous property if the owners of such land petition for such annexation and if the board of county commissioners approve such annexation. Non-contiguous annexations are not to be used as a base for further annexations, however, until such time as they become part of the city proper. “(5) Requires a municipality to formulate a plan for the extension and financing of major services to the area to be annexed. “(6) Provides that any property owner of land annexed by any city may seek recourse in the district court by challenging the authority of a city to annex and the regularity of such proceedings. “(7) Provides that any city may petition the board of county commissioners to annex land which it is unable to annex under any conditions specified in K.S.A. 1973 Supp. 12-520 and amendments thereto. It also provides for essentially the same notice and hearing requirements in this instance as mentioned previously and for appeal by an aggrieved city or property owner in the courts.” Proposal No. 92 — Annexation, Report on Kansas Legislative Interim Studies to the 1974 Legislature, pp. 92-5 through 92-6. The new laws provided for the following: K.S.A. 1974 Supp. 12-520 provided for unilateral annexation of land if one of seven conditions was met. Generally, the land had to be adjoining the city. K.S.A. 1974 Supp. 12-520a provided for notice and a hearing if land was to be annexed under 12-520. K.S.A. 1974 Supp. 12-520b provided that the city must prepare a plan describing the annexation, including extension of services and the general use to which the land was to be put. K.S.A. 1974 Supp. 12-520c provided for annexation of land not adjoining the city. It has not since been amended. K.S.A. 1974 Supp. 12-521, the alternate annexation procedure requiring county commission approval, was amended to include a requirement that the city file a plan similar to that required under K.S.A. 1974 Supp. 12-502b. In Board of Johnson County Comm’rs v. City of Lenexa, 230 Kan. 632, 640, 640 P.2d 1212 (1982), this court said of 12-521: “It is inconceivable that the legislature would require a city to petition a county board of commissioners and request a hearing on the advisability of annexation and require the county board to hear testimony on the advisability without the intention that the county board determine the advisability of the annexation. Under K.S.A. 12-521, the city proposes the annexation, it is up to the board to grant or deny the annexation. In carrying out its function of determining the advisability of the annexation the board is, at least in part, carrying out legislative functions as well as quasi-judicial functions and in so doing has an obligation to see that the rights of the public are protected.” In In re Appeal of City of Lenexa, 232 Kan. 568, 657 P.2d 47 (1983), the court expanded on the differing natures of the board’s role under 12-521. The court said: “The Board thus wears two hats: When it determines advisability, it acts in a legislative capacity, but when it determines manifest injury, it acts in a quasi-judicial capacity.” 232 Kan. at 575. The court went on to discuss an early Kansas statute, G.S. 1901, § 1172, which also required the board to determine that annexation would cause “no manifest injury” and an early case, Nash v. Glen Elder, 74 Kan. 756, 88 Pac. 62 (1906), in which the court held that a finding of no manifest injury is a judicial function. 232 Kan. at 575. This court then discussed the proper standard of review of quasi-judicial functions and legislative functions: “[W]hen a district court is called upon to review the action of the board in determining the judicial issue of manifest injury, the reviewing court is limited to considering whether, as a matter of law, (1) the board acted fraudulently, arbitrarily, or capriciously, (2) the board’s order is supported by substantial evidence, and (3) the board’s action was within the scope of its authority. [Citations omitted.] In reviewing the district court’s judgment, this court must first determine whether the district court observed the requirements and restrictions placed upon it, and then make the same review of the Board’s action as does the district court. [Citation omitted.] “The judicial review of the Board’s determination of the advisability of annexation, however, is the review of the legislative function. The duty of the district court, and of this court on appeal, is limited to a determination of whether the Board has the statutory authority to enter the order which it made.” 232 Kan. at 575-76.. In 1987, 12-521 was again amended. This time, the legislature codified the holdings of this court on the quasi-judicial nature of 12-521. L. 1987, ch. 66, § 5. The new relevant part of the statute provides: “The action of the board of county commissioners shall be quasi-judicial in nature. The board of county commissioners shall consider the impact of approving or disapproving the annexation on the entire community involved, including the city and the land proposed to be annexed, in order to insure the. orderly, growth and developmgnt of the community. The board shall make specific findings of fact and conclusions determining whether such annexation or the annexation of a lesser amount of such area causes manifest injury to the owners of any land proposed to be annexed, or to the city if the annexation is disapproved. The findings and conclusions shall be based upon the preponderance of evidence presented to the board.” K.S.A. 1990 Supp. 12-52I(c). What of decisions by the board to permit annexation under 12-520c? If they are legislative in nature only, then the board need not consider the use that the proposed land is to be put, or at least that consideration is not reviewable by us. However, if the requirement in K.S.A. 12-520c(a)(3) that “[t]he board . . . find and determine that the annexation of such land will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within such county” is quasi-judicial in nature, then the board would have to consider the planned use of the area. As noted above, this case has been considered on appeal before. The trial court had held that plaintiffs, as owners of adjacent property, had no standing to appeal. A divided Court of Appeals affirmed, holding: “In cases of a proposed annexation of land not adjoining the city, an adjoining owner of the property to be annexed who contests the anticipated use of the property annexed is not aggrieved by the annexation order and, therefore, has no standing pursuant to K.S.A. 12-520c(c) to challenge the proposed annexation. The adjoining owners remedy lies instead with a challenge of the issuance of the special use permit which must be obtained by the owner of the property annexed prior to commencing the contested use.” 13 Kan. App. 2d 734, Syl., 779 P.2d 463 (1989). (Emphasis supplied.) On petition for review, this court reversed. This court held that the adjacent landowners do have standing. This court held that in drafting the statutory mandate that the BOCC consider whether the annexation would “hinder or prevent the proper growth and development of the area” the legislature meant more than just the land to be annexed, and, therefore, an aggrieved landowner includes adjoining landowners who object to the annexation. This court did not, however, consider whether the BOCC’s finding was quasi-judicial. In order for an appeal by an adjoining landowner to be meaningful, the landowner would have to be able to challenge more than mere statutory authority or procedure. It is implicit in this court’s first opinion in this case that the BOCC acts in a quasi-judicial capacity in determining that the annexation of the land will not hinder or prevent the proper growth and development of the area. A finding that annexation will not hinder proper growth is more than just a legislative decision that annexation is advisable. It is analogous to finding that annexation will not cause manifest injury, which is a judicial finding. A further factor for interpreting 12-520c(a)(3) as quasi-judicial is the policy set forth by the special legislative committee that recommended the bill. The committee was concerned with the fact that individual property owners did not have sufficient rights, under existing law, to challenge annexation decisions. Interpreting 12-520c in light of this policy, the committee must have intended that 12-520c decisions should have meaningful review by the courts, thus expressing a legislative intent that the finding is quasi-judicial. If the finding is quasi-judicial, should the BOCC consider the proposed land use? Defendants argue that the answer is no, because this would usurp the function of the city zoning authority, and that plaintiffs remedy lies with the city. This is unpersuasive. The city officials making the decision on how to zone the land do not represent the residents in outlying areas. For the residents of outlying areas to have a voice in the land use, there must be some initial consideration by the BOCC. The proposed use or the reason for the requested annexation must be considered by the BOCC because the use or reason for annexation will affect the future growth of the area. In almost every case where there has been a request for island annexation, there will be a proposed use. Here, the landowner, Holland, wants to dp something specific with the land. What the landowner does will affect its neighbors. What the landowner does could either hinder or promote development. As such, it must be a factor in the BOCC’s determination of whether to grant permission for annexation when a specific land use has been proposed. The BOCC did hear testimony on land use. However, the chairman had instructed that it was not relevant. Michael P. Howe, staff attorney for the City of Lenexa, stated: “ ‘Finally, I must advise that your decision regarding the annexation request must remain completely independent of the pending Holland Corporation request for a Special Use Permit on this land. While the issue of the proposed immediate and long-term use of this property may be considered by the governing body of Lenexa and by the Board of County Commissioners in reaching its decision on the annexation, the decision to approve or deny this annexation should not have any bearing on the proposed Special Use Permit. That decision must be based upon your quasi-judicial analysis, findings, and conclusions with regard to the Kansas Supreme Court Golden factors and in compliance with the city’s Special Use Permit Ordinance. Likewise, a decision to approve or deny the Special Use Permit request shall not have any effect upon this annexation decision.’ ” Howe said he wanted to make it clear that Lenexa had the authority and responsibility to make land use decisions. John Gardner, attorney for Cedar Creek Properties and Ash Grove Cement Company, made certain additions to the record, and asked how a decision could be made on the effect that annexation would have on surrounding property without considering land use. Larry Winn, attorney representing Mr. and Mrs. Miller, property owners adjacent to the proposed annexation area, said that land use should be considered since this was not a case of abstract speculation about possible use in the distant future. Fred Logan, an attorney representing another landowner adjacent to the city, testified that he felt that the best land use for the region would be commercial and residential and that he opposed the annexation because it would hinder development. John Anderson, Jr., an attorney for Robert Anderson, whose land borders the tract, also argued that land use should be considered. The city attorney responded that the piece of property must be annexed on its own merit. Commissioner Lingle stated that the question of island annexation was totally unrelated to the zoning question and she moved to approve the motion. The final statement before the vote was by Chairman Nolte, who cautioned that this was not an appropriate arena for the zoning question and the vote for annexation should not necessarily be taken as support for the zoning. He said the zoning issue would be considered by the Planning Commission and officials of the City of Lenexa. The motion was approved unanimously. Interestingly enough, the only real testimony presented concerning land use was presented by Tom Phillips, Director of Community Development for Lenexa. He told the ROCC that the area in question had great future potential and that the area to be annexed had a wooded character and a rolling terrain and that, “[b]ecause of those characteristics, it is possible that that could be developed into an office campus similar to Corporate Woods.” Obviously, this testimony did not mislead anyone, because everyone at the meeting was aware that the intended use for the property was a limestone quarry. Thus, the record shows the BOCC heard at least some testimony concerning land use. It is very apparent, however, that the BOCC did not consider land use in making its decision and that it discouraged, if not prevented, introduction of evidence concerning the proposed land use. The BOCC’s refusal to consider land use was contrary to the legislative intent and purpose of K.S.A. 12-520c and there is no evidence regarding land use because the BOCC refused to consider the issue. The case is reversed and remanded with directions to the trial court to set aside Resolution No. 86-88.	[ 117, -20, -75, 28, 14, -126, 124, -118, 72, -13, -28, 83, -51, -38, 24, 57, -66, 29, -59, 122, -61, -73, 95, -61, -108, -13, 115, -35, -80, 93, 116, 87, 73, -64, -118, -11, -58, -54, 87, 28, -114, 7, -119, 72, -40, 2, 52, 42, 18, 11, 21, 47, -15, 41, 25, 99, 105, 44, 91, -91, 25, -8, -8, -43, 93, 6, 18, 2, -120, -123, 80, 58, -112, 57, -120, -24, 87, 54, -106, -12, 3, -101, -120, -82, 103, 1, -36, -34, -32, -103, 14, 80, 13, 38, -125, 88, 74, 66, -108, -97, 85, 2, 7, 122, -21, -124, 95, 108, -124, -42, -14, -109, 77, -3, -119, 3, -29, -89, 49, 33, -59, 98, 95, -42, 48, 27, -49, -16 ]
The opinion of the court was delivered by Herd, J.: Bernice A. Enlow brings this action for breach of contract, breach of warranties, negligence, and violation of the Kansas Consumer Protection Act against Sears, Roebuck and Company (Sears), based upon an agreement between the parties that Sears would replace the roof of Enlow’s house. Following a trial to a jury resulting in a verdict for Sears, Enlow appeals. FACTS On July 21, 1987, Enlow entered into a contract with Sears for certain roof repairs to Enlow’s house in Manhattan. The contract also provided that Sears was not responsible for delays in delivery or installation due to weather, fire, strikes, war, governmental regulations, or any causes beyond its control. At the time the contract was executed, Sears had an independent qualified roof installer available to perform roofing repair and installation services for Sears. Subsequent to the execution of the contract, the roofer advised Sears he would not accept the Enlow roofing repair job because of the steepness of her roof. Sears then located another qualified roofing contractor, Vernon “Ted” White, to repair Enlow’s roof. White commenced working on Enlow’s roof on or about October 18, 1987. He initially worked for two days, completing the roof on the porch of Enlow’s house. White then left Enlow’s job to complete another job. White returned to Enlow’s residence on October 30, 1987. On that day, White and his crew removed a portion of the roof of Enlow’s house. At nightfall they covered the opening in the roof with plywood, felt paper, and visquine. The crew left, intending to continue the next day. That night, a heavy rainstorm accompanied by strong winds occurred in Manhattan. The felt paper and visquine, were torn off the roof allowing water to enter the interior of Enlow’s house. As a result, water damaged the paint and wallpaper on the ceilings and walls and damaged the kitchen floor. The morning following the storm, Enlow called White and Sears’ employees Ed Weston and Jerry Riggs about the damage to her house. White arrived at Enlow’s house and, while attempting to repair the cover on the roof, slipped and fell off the roof, breaking his wrist. Within a few days White and Sears obtained another roofer, who then completed Enlow’s roof repair. Weston assured Enlow that Sears would take care of the water damage to the interior of her house at Sears’ expense. White also advised Enlow that he would see to it that the water damage to her house was taken care of at his expense. White and Weston then contacted an interior decorator, Jerry Haeflner, to prepare a proposal and get started on making repairs to Enlow’s house. Haeflner’s repair proposal was presented to Enlow, and Weston requested permission to instruct Haeflner to begin work. Enlow initially agreed to have Haeflner perform the work. Later, however, Enlow changed her mind and refused to permit the work to commence. Because Enlow would not permit Sears to begin any repairs and believed her house was not habitable until repairs were made, Sears agreed to pay for Enlow, her daughter, and her sister to live at the Holidome in Manhattan, until such time as an agreement could be reached and the house repairs completed. Enlow, her daughter, and her sister resided at the Holidome from October 31, 1987, until January 15, 1988, at Sears’ expense. Throughout that two and one-half month period, Enlow refused to authorize Sears to cause repairs to her house to commence. Eventually, Enlow selected a contractor of her own choosing to do the work, he began work in early January 1988. Enlow believed the insulation in the attic and walls was water damaged. Enlow, therefore, hired Donald Rose to inspect the insulation and prepare a proposal for the insulation repair work. Enlow also contended the electrical system in her house had been permanently damaged and communicated her concern to Weston of Sears. Enlow believed the water damage required the house to be completely rewired and, therefore, obtained a bid for the rewiring from an electrician, Ed Gifford. In July 1989, Gifford walked through Enlow’s house and Visually observed the outlets, fixtures, and switches in order to prepare his bid. Gifford did not inspect the wiring itself. Immediately following the rainstorm and prior to Gifford’s inspection, Sears had the electrical systém inspected by Charlie Johnson, who determined there was no permanent damage to the wiring as a result of the water getting into the house. After Gifford’s bid preparation, Sears had the electrical system in the house inspected by two electrical experts: Elmer Warren, the president of McElroy Electric, and Jerry Vineyard, a licensed electrical engineer. Both of these experts thoroughly examined the wiring itself, connections, various circuits, and the breaker box and fuse panel. Warren and Vineyard concluded there was no damage to Enlow’s electrical system as a result of its being exposed to water. During the trial, at the conclusion of Enlow’s evidence, Sears moved to dismiss Enlow’s claims for: (1) damage to the insulation; (2) damage to the electrical system; (3) violation of the Kansas Consumer Protection Act (KCPA); (4) punitive damages; (5) negligence in the actual installation of the roof; (6) breach of implied and express warranty; and (7) breach of contract. Following oral arguments, the trial court found Enlow’s claims for punitive dam ages should be dismissed. In addition, the trial court ruled En-low’s breach of contract claim should be dismissed as a matter of law. At the conclusion of all the evidence, Sears renewed its motions to dismiss Enlow’s claims for (1) damage to the insulation; (2) damage to the electrical system; (3) violation of the KCPA; (4) negligence in the actual installation of the roof; (5) breach of implied and express warranty; and (6) intentional tort. The trial court granted Sears’ motion to dismiss the claim for damages to the electrical system. The trial court also granted a portion of Sears’ motion to dismiss the claims for violations of the KCPA. Specifically, the trial court dismissed that portion of the KCPA claim that contended a violation occurred at the time Sears entered into the contract with Enlow because Sears did not have qualified personnel immediately available to perform the work. Additionally, the trial court dismissed that portion of Enlow’s KCPA claim which alleged Sears had intentionally delayed or failed to repair or restore the damaged premises to their original condition. Finally, the trial court granted Sears’ motion to dismiss Enlow’s intentional tort claim. After the trial court read instructions to the jury, the case was submitted to the jury on the remaining claims. During deliberations, the jury requested to see the testimony of Ted White. In response, the trial court had the jury return to open court and inquired as to what portion of testimony the jury wished to see. Once advised of the testimony desired, the court reporter read that portion to the jury. The jury then returned to the jury room to continue deliberations. Subsequently, the jury returned a verdict finding in Special Question 5 that Sears was not guilty of any negligence and, in another Special Question that apportioned the fault of each party, found Sears and Enlow each 50% at fault. We will develop other facts as needed in discussing the issues. In Enlow’s appeal, she has raised 14 issues. The issues fall into three broad categories. Our discussion will be divided into those three categories. I The first issue for discussion is whether the trial court erred in dismissing four of Enlow’s causes of action and two of her damage claims. The first group of issues involve the trial court’s dismissal of Enlow’s causes of action based upon negligence, breach of contract, the intentional tort of failing to restore Enlow’s house to a habitable condition, a violation of a portion of the KCPA, and Enlow’s claims for punitive damages and damages to her house’s electrical wiring. They are the result of Sears’ motions for directed verdict. Directed verdicts are governed by K.S.A. 1990 Supp. 60-250, which states: “(a) When made; effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for directed verdict shall state the specific grounds therefor. When a motion for directed verdict is sustained the judge shall cause the appropriate judgment to be entered. “(b) Reservation of decision on motion. Decisions on motions for directed verdict by parties joined pursuant to subsection (c) of K.S.A. 60-258a and amendments thereto, shall be reserved by the court until all evidence has been presented by any party alleging the movant’s fault.” The trial court, when ruling on a motion for a directed verdict pursuant to K.S.A. 1990 Supp. 60-250, “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.” Baker v. City of Garden City, 240 Kan. 554, 556, 731 P.2d 278 (1987). When reviewing a directed verdict, we must apply the same rule as the trial court. If evidence is such that reasonable minds could reach different conclusions, the verdict should be reversed. Baker, 240 Kan. at 556. Enlow asserts the trial court erred in dismissing her claim that White was negligent in protecting her roof and, thereby, denying her an opportunity to argue the doctrine of res ipsa loquitur to the jury. Enlow, however, did not raise the doctrine of res ipsa loquitur as a basis for her negligence claim until the oral argu ments on Sears’ motion to dismiss her claim of negligence in the installation of the roof. The trial court found no evidence had been admitted to prove White had deviated from industry standards. Enlow did not include the theory of res ipsa loquitur in the pretrial order, nor did she request a jury instruction on that theory. It is a well-known rule of law that “a point not raised before the trial court may not be raised for the first time on appeal.” Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984). Thus, Enlow’s argument on this issue must fail. Next, Enlow argues the trial court erred in dismissing her breach of contract claim. Enlow contends Sears breached its contract by: (1) failing to perform the repairs in a workmanlike or timely manner; (2) failing to adequately protect her property after exposing her house to impending rainfall; (3) failing to diligently commence work and, once work commenced, failing to diligently pursue the job to completion; and (4) commencing work in spite of a forecast for rain. The district court dismissed Enlow’s contract claim stating the wind, rain, and water damage was not a foreseeable consequence of a breach of the completion date. The court has long followed the rule of Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145, 5 Eng. Rul. Cas. 502 (1854), which states breach of contract damages “are limited to those damages which 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 both parties as the probable result of the breach.” Kansas State Bank v. Overseas Motosport, Inc., 222 Kan. 26, 27, 563 P.2d 414 (1977). In that case, Overseas admitted to breaching its contract with the bank. This court, however, found the bank’s damages arose from its misunderstanding of the difference between “security interest” and “priority.” We, therefore, held the bank could not collect damages from Overseas. 222 Kan. at 30. Sears argues Enlow was not harmed by dismissal of her -breach of contract claim because the same issue was submitted to the jury in her allegations of breach of express and implied warranties. Instructions No. 10 and No. 11 pertain to those claims. Instruction No. 10 states in pertinent part: “The plaintiff claims that she sustained damages due to defendant’s breach of its express or implied warranty in regard to the following: Improper installation of the roof, failure to correct faulty workmanship at no additional cost to plaintiff, failure to install the roof in a workmanlike manner and unfair dealings with the plaintiff.” The jury found Sears had in fact breached both its express and implied warranties but found Sears’ breach of warrants did not cause Enlow any damages. During the oral argument of Sears’ motion to dismiss the breach of contract claim, Enlow’s attorney stated he believed Sears breached the contract by not completing the project by August 10, 1987. However, he conceded the same evidence which pertained to the contract claim would also apply to the warranty claim. Considering his concession, the jury’s verdict, and all other evidence presented, we find no prejudicial error. Enlow also contends the trial court erred in dismissing her intentional tort claim for refusing to restore her house to a habitable condition. The trial court determined no such cause of action exists under Kansas law. We agree and, therefore, the trial court did not err. Enlow next asserts the trial court erred in dismissing part of her claim under the KCPA. Enlow argued Sears had knowingly entered into the agreement to re-roof her house without having qualified personnel immediately available to perform the work, in violation of K.S.A. 50-626(a). In reaching the decision to dismiss that portion of the KCPA claim, the trial court found the evidence established that at the time the contract was entered into, there were qualified personnel available to perform the work. The trial court further held that whether such personnel were qualified or available did not fall within the purview of the KCPA. The trial court, however, did submit Enlow’s KCPA claims to the jury as to whether Sears acted in a deceptive manner regarding the “delay in performance or completion of the contract” and “failure to fulfill the contractual obligation to repair or restore plaintiff s property after suffering water damage.” We find no error in the dismissal of part of Enlow’s KCPA claim. Let us now address Enlow’s claims regarding dismissal of two of her damage claims. First, Enlow contends Sears’ actions amounted to willful, wanton, or malicious conduct and, therefore, entitled her to punitive damages. The trial court ruled as a matter of law that Enlow had not submitted any evidence to .support her claims of willful, wanton, or malicious acts on the part of Sears. The plaintiff has the burden of presenting evidence that supports a claim for punitive damages. K.S.A. 1990 Supp. 60-3701(c). However, it is not incumbent upon us to review the evidence to determine this issue. A verdict for actual damages is a prerequisite to the award of punitive damages. Stevens v. Jayhawk Realty Co., 236 Kan. 90, 91, 689 P.2d 786 (1984); Lantz v. City of Lawrence, 232 Kan. 492, 499-500, 657 P.2d 539 (1983). Because the jury found Enlow to be 50% at fault, thereby precluding any damage recovery, the issue of punitive damages is moot. Enlow also complains that the district court erred in dismissing her claim of damages to her house’s electrical wiring system. The trial court stated that to determine whether the water from the rain caused the complained of damage to the wiring required knowledge of more than a lay person. Enlow’s expert witness, Ed Gifford, a master electrician, admitted he did not inspect the electrical system to determine if it was damaged. Gifford only inspected the wiring to calculate a replacement cost. Furthermore, he testified that he was unable to determine whether the electrical system suffered any permanent damage on October 31, 1987. The issue of damages should not be submitted to the jury if no evidence has been presented to support an award of damages. Morris v. Francisco, 238 Kan. 71, Syl. ¶ 2, 708 P.2d 498 (1985). In the case under consideration, Enlow did not present any evidence upon which the jury could base an award for damages to her electrical system. We find no error. II We now turn to the issue of whether the trial court erred in its evidentiary rulings. It is a cardinal principle of law that rulings on admissibility of evidence fall within the sound discretion of the trial court. Thus, one attacking evidentiary rulings must show abuse of discretion. An abuse of discretion exists “ ‘only when no reasonable man would take the view adopted by the trial court.’ ” Reich v. Reich, 235 Kan. 339, 343, 680 P.2d 545 (1984) (quoting Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 [1973]). Enlow has the burden of proving her abuse of discretion claims. See Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983). Additionally, a verdict will not be set aside nor a judgment reversed by reason of the erroneous exclusion of evidence unless it appears the complaining party proffered the excluded evidence. K.S.A. 60-405. We will first address the three issues surrounding Ted White’s testimony where Enlow claims the court abused its discretion. Enlow argues the district court erred by limiting her impeachment of White as an adverse or hostile witness. Prior to trial, White testified in his deposition that the opening in the roof had been covered by felt paper and visquine but denied any plywood had been used to cover the opening. Thus, his trial testimony regarding the use of plywood to cover the opening in the roof differed from his deposition testimony. White was called by Enlow during her case in chief and was declared to be a hostile witness, thereby enabling Enlow’s attorney to ask leading questions. Enlow claims the trial court ruled her attorney could not impeach White with his prior inconsistent testimony. For support she refers to the trial transcript where the trial court ruled White could not be impeached with prior testimony about his working relationship with Sears. The court made no ruling with regard to the inconsistent deposition testimony. At no time during either the direct or redirect examination of White did Enlow’s attorney: (1) confront or attempt to confront White with his prior inconsistent testimony; (2) seek to refresh White’s recollection of the events by offering him an opportunity to review his deposition testimony; or (3) attempt to impeach White’s trial testimony with regard to the manner in which the opening in the roof had been covered. Furthermore, Enlow failed to make a proffer of White’s deposition testimony concerning the plywood. Enlow cannot raise this issue for the first time on appeal. See Schmeck v. City of Shawnee, 232 Kan. 11, 35, 651 P.2d 585 (1982). Also, Enlow cannot claim the trial court erred in excluding White’s deposition testimony from the trial when she failed to offer it. Next, Enlow contends the trial court erred by refusing to allow her to call Gerald Hendrick to rebut the testimony of White regarding whether plywood was used to cover the opening in the roof. The trial court denied Enlow’s request to call Hendrick, stating it would not be proper rebuttal evidence. “Rebuttal evidence can be introduced only after the parties have closed their case in chief and is limited to issues placed in conflict by the adverse party.” 8 Branton & Lovett, Trial Lawyer’s Series-Evidence, p. 1-137 (1991) (citing Greenstein, Logan & Co. v. Burgess Marketing, Inc., 744 S.W.2d 170 [Tex. Civ. App. 1987]). We have stated: “Rebuttal testimony is, generally speaking, evidence presented in denial of some fact which the adverse party has attempted to prove. [Citation omitted.] It is clearly within the discretion of the trial court as to whether rebuttal evidence is allowed, and the ruling of the court will not be ground for reversal unless it appears the discretion has been abused to the prejudice of the [complaining party].” State v. Norwood, 217 Kan. 150, 154, 535 P.2d 996 (1975). Orderly trial procedure requires some limitation upon the introduction of evidence. 29 Am. Jr. 2d, Evidence § 250, p. 298. Thus, there is a point where a trial court must stop the introduction of new evidence. Here, as Enlow’s witness, White testified he had covered the roof with plywood. Although White had been declared a hostile witness, Enlow failed to treat him as such and did not cross-examine or attempt to impeach White with his prior inconsistent statement. Sears did not present any new evidence regarding the plywood in its case in chief. Therefore, under these facts, introducing rebuttal evidence by Enlow to impeach White is improper. We hold the trial court did not abuse its discretion. Enlow also argues the trial court erred by denying her motion for new trial on the basis that White materially changed his testimony at trial. She contends White’s testimony constituted surprise and, thus, was prejudicial to her case. Enlow’s attorney was aware of White’s deposition testimony. The attorney referred to White’s deposition when questioning White on other facts. Enlow’s attorney had ample opportunity to impeach White with his deposition on the issue of the use of plywood to cover the opening in the roof. The trial court, therefore, did not err in denying Enlow’s motion for new trial. Enlow’s next issue involves the examination of Don Rose. En-low hired Rose, owner of a contracting business, to examine her house’s insulation in December 1989. Rose was assisted by his employee, Vaughn Telfer, in preparing a proposal for the repair of insulation that Enlow believed to be damaged by the rain getting into her house. When Enlow attempted to introduce Rose’s proposal, plaintiffs exhibit 23, Sears objected on the grounds that parts of the proposal were based on Telfer’s observations. Telfer had opened the attic and some of the house’s walls, but Rose had not observed this for himself. The trial court sustained Sears’ objection. Mr. Rose, however, was allowed to testify as to what he had observed and what his estimate of the total cost would be to repair the insulation in the house. The estimate included the replacement of the damaged insulation observed by Telfer. Enlow argues on appeal that plaintiffs exhibit 23, Rose’s proposal, should have been admitted despite the hearsay issue because it falls within the exception for business records. K.S.A. 1990 Supp. 60-460(m). Enlow did not assert this argument at trial. We, however, need not rely on that oversight because the information contained in plaintiff s exhibit 23 was admitted through Rose’s testimony. We find the exclusion of the exhibit not to be prejudicial. Enlow additionally argues that even if plaintiffs exhibit 23 was properly excluded, the trial court abused its discretion by not allowing her to call Vaughn Telfer as a witness. We disagree. The evidence which Telfer could have testified to had been presented through Rose and was thus repetitious and Telfer, though known, was not listed as a witness by Enlow. Therefore, the trial court did not abuse its discretion. Ill The next issue for our consideration is whether the trial court erred in instructing the jury and responding to jury questions, and whether the jury’s verdict is so inconsistent as to require a new trial. First, Enlow argues the trial court erred in the instructions to the jury. In her brief to the court, Enlow merely refers us to the trial transcript and to the instructions actually used. Enlow does not specify the error or cite legal authority supporting her contention. Supreme Court Rule 6.02(e) (1990 Kan. Ct. R. Annot. 25) requires that an appellant’s brief include “[t]he arguments and authorities relied upon.” We, therefore, shall not address this issue. Enlow also contends the trial court erred in its response to jury questions during deliberations. Enlow specifically objects to the procedure used by the trial court when the jury submitted a written question through the bailiff requesting to see the testimony of Ted White. With the parties present, the trial court brought the jury back to the courtroom and asked the foreman what portion of White’s testimony the jury was seeking. The trial court then had the court reporter read back the portion requested. Enlow did not object to this procedure. The procedure for dealing with a jury’s request for information after retiring is governed by K.S.A. 1990 Supp. 60-248(e). It states: “If, after the jury has retired for deliberations, 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 the court, after notice to counsel for the parties, may consider and make such provision for a response to the request of the jury as the court finds to be required under the circumstances.” Enlow argues the trial court’s procedure gave undue emphasis to White’s testimony. We find the trial court fully complied with K.S.A. 1990 Supp. 60-248(e) and, therefore, there is no error. In Enlow’s final argument she claims the jury’s findings were contrary to the evidence, ambiguous, and inconsistent with the instructions and, thus, indicate the jury’s misunderstanding of the law or facts, or both. Enlow bases this claim upon the fact that the jury answered “No” to the question of whether it found the defendant negligent, and yet, when asked the amount of fault attributable to each party, the jury found Enlow and Sears each 50% at fault. “So long as the verdict manifests the intentions and findings of the jury upon the issues submitted, it will not be overthrown merely because of defects in form.” Fudge v. City of Kansas City, 239 Kan. 369, Syl. ¶ 4, 720 P.2d 1093 (1986). The jury was instructed on appellant’s claims and the damages it could award. The jury found Sears was not negligent and chose not to award any damages based on any of Enlow’s claims. Although the jury found both parties 50% at fault, it is apparent the verdict manifests the intentions and findings of the jury to render a verdict for Sears. Inconsistent jury findings, all of which give judgment to the same party, here the defendant, do not constitute reversible error. The judgment is affirmed.	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The opinion of the court was delivered by LOCKETT, J.: Jack R. Ellis petitioned for review of the Court of Appeals decision limiting his postjudgment interest award. Ellis v. State Farm Mut. Auto. Ins. Co., No. 64,751, unpublished opinion filed February 15, 1991. Ellis claims the Court of Appeals (1) failed to follow Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79 (1990), which states that under a standard supplementary payments clause in a liability insurance policy, an insurer is liable for all interest on the entire amount of any judgment which accrues after entry of the judgment and before the insurer has paid or tendered or deposited in court the amount of the policy limits plus interest on the entire judgment, and (2) improperly found his postjudgment interest claim was barred by the doctrine of res judicata. Ellis was injured in an automobile-pedestrian accident on February 27, 1981. State Farm Mutual Automobile Insurance Company (State Farm) insured both Ellis, the pedestrian, and Horace Whittaker, the driver of the automobile that struck Ellis. State Farm paid Ellis $61,151.21 in personal injury protection (PIP) benefits under his insurance policy. Whittaker’s automobile liability insurance limit for injury to one person was $25,000. Ellis sued Whittaker on July 20, 1981, in Thomas County. In February 1982, State Farm intervened under K.S.A. 40-3113a to assert its PIP lien of $61,151. The case was settled for $175,000 on March 8, 1983. The policy limit of $25,000 was mailed by Whittaker’s insurer (State Farm) on April 15, 1983, to the clerk of the district court of Thomas County. The clerk received the $25,000 settlement draft on April 19, 1983. In August 1983, the trial court ordered that the $25,000 paid into court, less attorney fees, be paid to Ellis’ insurer (State Farm) under its PIP lien. Ellis did not appeal the court’s order to reimburse State Farm. On January 13, 1984, the Supreme Court decided State Farm Mut. Auto. Ins. Co. v. Kroeker, 234 Kan. 636, 676 P.2d 66 (1984). In Kroeker, we held a PIP insurer is not entitled to reimbursement for prior PIP payments out of payments made on behalf of a tortfeasor on a settlement or on a judgment when such payments are not duplicative of the PIP benefits. Relying on Kroeker, Ellis filed a motion, pursuant to K.S.A. 60-260(b), to modify the 1983 judgment disbursement of the $25,000 to State. Farm. The district court refused to modify the judgment, finding the motion inappropriate because Ellis had failed to appeal. The Court of Appeals affirmed. Ellis v. Whittaker, 10 Kan. App. 2d 676, 709 P.2d 991 (1985). On March 7, 1988, Ellis filed the present case in Sedgwick County, requesting a judgment in the amount of $107,374.61 for interest due Ellis on the 1983 judgment from April 15, 1983, the date State Farm mailed the $25,000 to the clerk of the district court, through March 7, 1988, the date of the filing of the petition in the present case, and for additional interest thereafter at 10.5% per annum. The claim for the interest is based on a provision in Whittaker’s policy of insurance which stated: “Section I — Liability — Coverage A: SUPPLEMENTARY PAYMENTS In addition to our limit of liability, we will pay on behalf of a covered person: 3. Interest accruing after a judgment is entered in any suit we defend. Our duty to pay interest ends when we offer to pay that part of the judgment which does not exceed our limit of liability for this coverage.” In July 1988, the case was transferred from Sedgwick County to Thomas County, the county where the original action was filed and decided. On December 28, 1989, the district court determined that State Farm should pay postjudgment interest on plaintiffs entire $175,000 judgment against the driver, from March 8, 1983, the date of the settlement, through April 19, 1983, the date State Farm’s settlement draft of $25,000 was received by the clerk of the district court. The district court determined the amount of interest due to be $3,020.56. State Farm paid the $3,020.56 into court. Ellis appealed. State Farm did not cross-appeal. In reaching its decision, the Court of Appeals panel split 2-1. Judge Gernon and Assigned District Court Judge Ralph King formed the majority; Judge Davis dissented. The majority of the Court of Appeals first found that the holding in Glenn was not controlling because the language of State Farm’s policy was different from the language of the policy in Glenn and required a separate analysis. Second, the majority determined the language of State Farm’s supplementary payments provision, which states the duty to pay interest terminates “when we offer to pay” that part of the judgment not exceeding the company’s liability thereon, is broader than the policy language in Glenn and its predecessor, Stamps v. Consolidated Underwriters, 208 Kan. 630, 493 P.2d 246 (1972). The majority held that under Ellis’ policy language when there is an offer to pay on the driver’s behalf, the settlement is reached; the insurer’s duty to pay interest on the judgment ended on March 8, 1983, the date of the settlement. The majority then stated that because of State Farm’s brief delay in payment of its policy limit, the trial court resolved State Farm’s delay in an equitable manner by awarding Ellis interest from March 8, 1983, to April 19, 1983. (The record does not indicate the trial court resolved the delay on the basis of equity.) Third, the majority of the panel asserted that Ellis had impermissibly split his cause of action. The majority held the issue of interest due Ellis could have been raised when the $25,000 was ordered to be given to State Farm as reimbursement for PIP benefits in August 1983, and the doctrine of res judicata barred Ellis’ interest claim. Judge Davis dissented, arguing that under the terms of its policy, State Farm had obligated itself to pay interest on the entire judgment. Judge Davis reasoned State Farm’s offer to pay its policy limit without an actual tender of payment was illusory and the obligation to pay interest continues until the policy limit is actually paid. Judge Davis would have held that State Farm’s policy provision was no different from those examined in Glenn and Stamps and that State Farm was liable for interest on the $175,000 judgment from March 8, 1983, through the date it paid the $3,020.56 into court. Judge Davis asserted the issue of res judicata was not properly before the Court of Appeals because the district court, by granting an interest award, rejected State Farm’s res judicata defense and State Farm did not appeal that ruling. Ellis contends the Court of Appeals erred in holding there had been an impermissible splitting of a cause of action and, therefore, his claim was barred by the doctrine of res judicata. Ellis notes the postjudgment litigation in the original action was between Ellis and State Farm in its capacity as Ellis’ PIP automobile insurance carrier and did not involve State Farm in its capacity as the driver’s liability insurance carrier. Ellis asserts State Farm, by paying into court the $3,020.56 interest, waived its right to appeal the trial court’s implicit rejection of the contentions that Ellis had an impermissible split of a cause of action and that his claim was barred by the doctrine of res judicata. Ellis argues that, because State Farm did not appeal, the Court of Appeals denied him the opportunity to brief the issue of res judicata and improperly decided that issue. The law does not favor a multiplicity of suits, and where all the matters in controversy between parties may be fairly included in one action, the law requires that should be done. The doctrine of res judicata prohibits one who has a cause of action from dividing or splitting that cause so as to make it the subject of several actions, without the consent of the person against whom the cause exists. Thisler v. Miller, 53 Kan. 515, 521, 36 Pac. 1060 (1894). The doctrine of res judicata “is founded upon the principle that the party, or some other with whom [the party] is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction. [Citation omitted.] The salutary rule of res judicata forbids a suitor from twice litigating a claim for relief against the same party. The rule is binding, not only as to every question actually presented, considered, and decided, but also to every question which might have been presented and decided. [Citation omitted.] The doctrine of res judicata prevents the splitting of a single cause of action or claim into two or more suits; it requires that all the grounds or theories upon which a cause of action or claim is founded be asserted in one action or they will be barred in any subsequent action. [Citation omitted.] This rule is one of public policy. It is to the interest of the state that there be an end to litigation and an end to the hardship on a party being vexed more than once for the same cause. The doctrine of res judicata is, therefore, to be given a liberal application but not applied so rigidly as to defeat the ends of justice. [Citation omitted.] “An issue is res judicata when there is a concurrence of four conditions: (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made. [Citations omitted.]” In re Estate of Reed, 236 Kan. 514, 519, 693 P.2d 1156 (1985). State Farm raised the issue of res judicata in its brief to the Court of Appeals. Although State Farm did not cross-appeal the district court’s decision, it asserts the issue of res judicata was properly before the Court of Appeals because an appellee may urge any matter for affirmance of a judgment, even though the argument may involve an attack on the reasoning employed by the lower court or add new reasons that the lower court ignored in reaching the judgment. See City of Lenexa v. Board of Johnson County Comm'rs, 237 Kan. 782, 784, 703 P.2d 800 (1985), and Williams v. Amoco Production Co., 241 Kan. 102, 116, 734 P.2d 1113 (1987). Ellis’ use of K.S.A. 60-260(b) to attack the original Thomas County judgment was a direct attack. An attack on a judgment is direct where the proceeding is brought for the purpose of impeaching or overturning the judgment. When Ellis’ direct attack on the judgment failed, he split the cause of action by filing the second lawsuit to obtain interest he claimed was due on the original judgment. No principle of law exempts a person from the application of the doctrine of res judicata because the effort to break a single cause of action into two or more parts was due to neglect, accident, mistake, ignorance, or a subsequent change in the law. “Application of the doctrine of res judicata is unconcerned with the procedural avenue employed to acquire jurisdiction in a particular tribunal. The doctrine prevents a second assertion of the same claim or cause of action and, regardless of which statute a party uses to proceed to a tribunal, where the same facts, same parties, and same issues have previously been litigated before a court of competent jurisdiction which renders a judgment within its competency, the cause of action is barred. [Citation omitted.]” In re Estate of Reed, 236 Kan. at 519. State Farm raised the issue of res judicata in its appellee’s brief. Ellis could have briefed the issue in a reply brief under Supreme Court Rule 6.05 (1990 Kan. Ct. R. Annot. 27) had he so desired. By our finding Ellis split his cause of action and his claim for interest is barred by the doctrine of res judicata, it is unnecessary to construe the language of the supplementary payments provision of Whittaker’s automobile liability policy. Because the Court of Appeals’ held that res judicata barred Ellis’ second action for interest due on the original judgment, its comments regarding the language of the supplementary payments provision is dicta. Affirmed.	[ -12, -4, -11, -66, 8, 96, 114, -37, 121, -28, 36, 83, -69, -26, -123, 57, -66, -71, 69, 96, -41, -77, 55, -30, -97, -77, -7, -44, -112, 95, -28, -42, 13, 56, -118, -43, -26, -54, -123, 20, -50, 6, -119, -11, 121, 17, 48, 57, 16, 75, 53, -121, 99, 42, 25, 67, 44, 44, 91, -95, -63, -15, -118, -123, 127, 18, -111, 4, -66, 39, -40, 14, -104, 49, 120, -24, 114, -90, 86, -12, 33, -103, 12, -90, 103, 17, 16, -19, -4, -104, 14, -42, 63, -62, -106, 88, 10, 1, -74, -97, 106, 16, 7, -38, -3, 29, 30, 109, 1, -118, -108, -80, -49, 124, 27, 10, -9, -115, -96, 117, -55, -30, 93, -41, 126, -77, 55, -74 ]

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